Lanier v. Bryan

• Citation: 114 S.E. 6
• Decision Date: 25 October 1922
• Docket Number: 231.
• Parties: 184 N.C. 235, 26 A.L.R. 1488 v. BRYAN. LANIER
• Court: United States State Supreme Court of North Carolina

114 S.E. 6

184 N.C. 235, 26 A.L.R. 1488

LANIER v. BRYAN.

No. 231.

Supreme Court of North Carolina

October 25, 1922

Appeal from Superior Court, Onslow County; Lyon, Judge.

Civil action by Elsie Lanier, as guardian of Pennie Lanier, against W. H. Bryan, tried before Lyon, J., and a jury, at the April term, 1922, of Onslow, to recover damages for the seduction of the plaintiff. Judgment for plaintiff, and defendant appeals. No error.

Competency of witness is a question for the court to decide.

When the plaintiff was called as a witness, the defendant objected to her examination on the ground that she was incapable of understanding the obligation of an oath and mentally incapable of testifying to the occurrences set forth in the complaint. His honor then heard the testimony of Dr. McNairy an expert in mental diseases, who had treated her in the Caswell Training School, and therefrom found the following as facts:

(1) The plaintiff, who was over the age of 21 years at the trial, had been adjudged, in a proceeding instituted and conducted before the clerk of the superior court of Onslow county, to be of unsound mind.

(2) She was incapable of any sense of moral obligation and of understanding the nature of an oath.

(3) Mental defectives are idiots, imbeciles, or morons, and the plaintiff is a member of the second class and has a mentality not in excess of a normal child ranging from 3 to 6 years of age.

Upon these facts and what appeared from Dr. McNairy's testimony, his honor held as a matter of law that the plaintiff was a competent witness and permitted her to be examined. The defendant excepted.

The plaintiff was then examined, and his honor, at the conclusion of her evidence, without specifically finding the facts, held upon all the evidence, of course including her own testimony that she was competent to testify as a witness. The defendant again excepted. The issues were answered in favor of the plaintiff.

Shaw & Jones, of Kinston, Frank Thompson, of Jacksonville, and McLean, Varser, McLean & Stacy, of Lumberton, for appellant.

Cowper Whitaker & Allen, of Kinston, George R. Ward, of Wallace, and Duffy & Day, of Jacksonville, for appellee.

ADAMS J.

The tests that have usually been applied to determine the competency of a person offered as a witness are those of age mental power, religious belief, and capacity, to understand the nature and obligation of an oath. Particularly with reference to the first three of them the decisions have not been uniform. At one time the age of competency was fixed at 14, and children over that age were examined as a matter of course; but in some of the earlier decisions it was held that children under 9 years of age were incompetent to testify, and that the competency of those between 9 and 14 was dependent upon their understanding and moral sense. With respect to age it is now generally held that no precise minimum limit can be fixed, and that as to mentality the controlling factor is the strength of the witness' understanding, or the degree of his intelligence. State v. Edwards, 79 N.C. 650; State v. Meyer, 14 Ann. Cas. 3, note.

In a number of American cases decided in the first half of the nineteenth century it was held that idiots and insane persons were not competent to be witnesses; but subsequently the courts, "keeping pace with the progress of science" and the demands of a more enlightened period, relaxed the rigor of these decisions and modified the former strictness of the rule. It may be said that the substance of the modern doctrine was adopted in England in 1851 and announced by Lord Campbell in Reg. v. Hill. There a patient in a lunatic asylum was offered as a witness for the crown to testify on the trial of the defendant, who was prosecuted for homicide. When called and objected to, he said in part upon examination as to his competency:

"I am fully aware I have spirits. * * * I know which are mine. Those that ascend from my stomach and my head, and also those in my ears. I don't know how many they are. The flesh creates spirits by the palpitation of the nerves and the rheumatics; all are now in my body and round my head; they speak to me incessantly, particularly at night. * * * They are speaking to me now; they are not separate from me. * * * They can go in and out through walls and places which I cannot. I go to the grave; they live hereafter. * * * My ability evades me while I am speaking, for the spirit ascends to my head. * * * It is perjury, the breaking of a lawful oath or taking an unlawful one; he that does it will go to hell for all eternity."

He was then sworn and gave a collected and rational account of a transaction which he said he had witnessed.

Discussing his competency, Lord Campbell said:

"Various authorities have been referred to, which lay down the law, that a person non compos mentis is not an admissible witness. But in what sense is the expression non compos mentis employed? If a person be so to such an extent as not to understand the nature of an oath, he is not admissible. But a person subject to a considerable amount of insane delusion, may yet be under the sanction of an oath, and capable of giving very material evidence upon the subject matter under consideration. The just investigation of truth requires such a course as has been pointed out to be pursued. * * * It has been contended that the evidence of every monomaniac must be rejected. But that rule would be found at times very inconvenient for the innocent as well as for the guilty. The proper test must always be, does the lunatic understand what he is saying, and does he

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