Skelton v. State
| Decision Date | 28 February 1947 |
| Docket Number | 32154. |
| Parties | SKELTON v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. A mentally defective person is competent to testify as a witness if he has sufficient mental capacity to understand the nature and obligation of an oath and possessed of sufficient mind and memory to observe, recollect, and narrate the things he has seen or heard. If he has been committed to a state hospital and is an inmate thereof then there arises a prima facie presumption that he is incompetent as a witness. However, such presumption is rebuttable by the voir dire examination of the witness alone or aided by extrinsic evidence. The burden of rebutting the presumption of incompetency is on whoever offers him as a witness.
2. The question of competency of a person to be a witness is left to the sound discretion of the trial judge, leaving to the jury to determine the credit that ought to be given to the testimony.
3. The trial court's action on the question of probation under sections 29-2217 and 29-2218, R.S.1943, is discretionary and not reviewable.
Harry F. Russell, of Hastings, for plaintiff in error.
Walter R. Johnson, Atty. Gen., and C. S. Beck, Asst. Atty. Gen., for defendant in error.
Heard before SIMMONS, C. J., CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ., and ANKENY, District Judge.
By information filed in the district court for Adams County Luther Skelton was charged with the crime of manslaughter and, also, with unlawfully assaulting Alfred T. Anderson with intent to inflict great bodily injury. These charges arose out of the death of Alfred T. Anderson on or about December 29, 1945.
A jury found the defendant guilty of unlawfully assaulting Alfred T. Anderson with intent to inflict great bodily injury.
His motion for new trial having been overruled and a sentence imposed that he serve a term of not less than 18 nor more than 36 months at hard labor in the state penitentiary, the defendant, by petition in error, brings the record of his conviction here for review.
For convenience the plaintiff in error will be referred to as the defendant.
Defendant assigns the following as error: The trial court's ruling in permitting three inmates of the Hastings State Hospital to become witnesses and testify; its overruling of his motion for a directed verdict because of the insufficiency of the evidence to sustain the conviction; its overruling of his motion for a directed verdict because of his plain and reasonable defense as a matter of law; and its denial of his application for a parole as provided by statute.
Without reciting in detail the incidents leading up to and resulting in the unfortunate death of Alfred T. Anderson in the early morning of December 29, 1945, while an inmate of the Hastings State Hospital at Ingleside, Nebraska, and a patient in ward 30 thereof, we find it fully sustains the defendant's conviction of unlawfully assaulting Alfred T. Anderson with intent to inflict great bodily injury. In fact, it would support a finding of his guilt on either count.
The assigned error that defendant had a plain and reasonable defense as a matter of law apparently relates to the question of self-defense and that he was at the time acting in the performance of his duties as attendant. Some evidence was introduced as to both issues. They were submitted to the jury by the instructions but determined against the defendant. Under the evidence these issues presented a question of fact for the jury and not one of law for the court. Having been submitted to the jury the claimed error is without merit.
While not assigned as error the defendant discusses the admission of exhibit 2, which is a statement made by defendant in the form of questions and answers and signed by him. He claims this exhibit should not have been received in evidence. The contents thereof relate to the incidents which resulted in the death of Alfred T. Anderson and defendant's connection therewith. We find from the foundation laid for its admission that it was freely and voluntarily made and signed with full knowledge of its contents, and that it was properly received in evidence.
Defendant contends that because of the provisions of section 25-1210 R.S.1943, the court erred in permitting three inmates of the Hastings State Hospital to become witnesses and testify.
Wray Wycoff Fred Domeier, and Mike Ortner were inmates of the Hastings State Hospital and patients in ward 30 during the night of December 28 and morning of December 29, 1945. They were permitted to testify as to what they saw and heard of the incident which resulted in the death of Alfred T. Anderson, who was also a patient in the same ward.
Before the witnesses were permitted to testify they were examined by counsel and court as to their understanding of the nature and obligation of an oath and also as to whether or not they were capable of giving a fairly correct account of what each had seen or heard in connection with the subject matter about which they testified. Medical testimony of the doctor in charge was offered on the same subject matter. By the instructions of the court the competency of these witnesses was also submitted to the jury. Their competency at the time of the trial having been passed upon both by the court and jury, and we think correctly, no error arises in permitting them to testify unless it can be said they were incompetent as a matter of law.
The statute above referred to is in part as follows: Section 25-1201, R.S.1943.
It is the thought of the defendant that by their commitment the inmates of our state hospitals are declared to be of unsound mind and remain so as long as they are therein confined and are, therefore, under the provisions of subdivision one of the foregoing statute incompetent to testify as a matter of law. We have apparently never passed upon the question in this jurisdiction but we find many other jurisdictions which have the same or similar statutory provisions that have passed thereon.
As stated in 3 Jones on Evidence, 4th Ed., § 723, p. 1300:
This general rule is stated in Pittsburg & W. Ry. Co. v. Thompson, 6 Cir., 82 F. 720, 726, as follows: "The general rule therefore, is that a lunatic or a person affected with insanity is admissible as a witness if he have sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters he has seen or heard in reference to the questions at issue; and whether he have that understanding is a question to be determined by the court, upon examination of the party himself and any competent witnesses who can speak to the nature and extent of his insanity." See District of Columbia v. Arms, 107 U.S. 519, 2 S.Ct. 840, 27 L.Ed. 618. And in State v. Herring, 268 Mo. 514, 188 S.W. 169, as follows: '* * * the universal rule at common law, now is that the lunatic may be sworn and may testify as a witness, provided, upon examination by the court (who is the sole judge of his competency, subject to review on appeal for an abuse of discretion), he shows that he understands the nature...
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