State v. Alberts
| Decision Date | 17 March 1925 |
| Docket Number | 36257 |
| Citation | 202 N.W. 519,199 Iowa 815 |
| Parties | STATE OF IOWA, Appellee, v. CHARLES ALBERTS, Appellant |
| Court | Iowa Supreme Court |
Appeal from Johnson District Court.--R. G. POPHAM, Judge.
DEFENDANT was indicted, tried, and convicted for the crime of rape upon an imbecile female. From the judgment entered, he appeals.
Reversed.
Byington & Rate, for appellant.
Ben J Gibson, Attorney-general, and Edward L. O'Connor, County Attorney, for appellee.
OPINION
DE GRAFF, J.
The first complaint of appellant is directed to the action of the trial court in overruling objections bearing on the competency of the prosecutrix as a witness.
The trial commenced October 15, 1923. The prosecutrix was the first witness called by the State; and before she was sworn defendant challenged her competency, for the reason that the records in the office of the clerk of the district court of Johnson County, Iowa, show that the "witness has been judicially declared to be of unsound mind, and that she is a person of insufficient mental capacity to understand the nature of an oath." Defendant further requested that "if there is evidence offered as to the competency of the witness, that it be taken out of the presence of the jury." The following record was then made:
The record is silent that any evidence was taken by the court. Thereupon the defendant offered to identify the insane records in question by the clerk of the district court, and offered to show that the prosecuting witness, Blanche Holt, was judicially declared to be of unsound mind on April 11, 1923, and further offered in evidence page 475 of the "Insane Records of Johnson County." At this time, further objection was made to the swearing of the witness, for the reason that her competency, in the light of the record, had not been established, and that she is prima facie incapable of testifying as a witness. The State resisted both the offer and the objection, on the theory that the proffered testimony would be a part of the defense, and that: "It is offered at the wrong time." The objection of the defendant was overruled, and the objection of the State was sustained. Counsel for defendant then asked that "the witness be examined as to her competency, to determine the same, and that the same be not done in the presence of the jury." To this the State entered an objection, which was sustained; and the court ordered that the examination take place in the presence of the jury.
I. Our statute provides that every human being of sufficient capacity to understand the obligation of an oath is a competent witness. Section 11254, Code of 1924. Both text and decision affirm that the competency of a witness is for the court, and not the jury, and ordinarily should be determined by the court before the witness is sworn. The rule is well stated in Commonwealth v. Reagan, 175 Mass. 335 (56 N.E. 577):
"Upon principle, and by an overwhelming weight of authority in England and in this country, we are satisfied that, when a witness is called, and it is objected that, by reason of insanity or youthfulness, he does not understand the nature of an oath, and is therefore incompetent, it is the duty of the judge to examine into the question of his competency, and to reject him unless he is satisfied that he is competent."
In State v. King, 117 Iowa 484, 91 N.W. 768, it is said:
"It may be the witness possessed the requisite capacity; but, if so, that fact should have been developed before receiving her testimony."
See, also, Birdwell v. United States, 4 Okla.Crim. 472 (113 P. 205).
The test is whether, at the time the witness is offered in the particular case, he understands and appreciates the obligation of an oath. State v. Yates, 181 Iowa 539, 164 N.W. 798. In the instant case, the defendant was not only privileged, at the time he entered his objection to the competency of the witness, to offer the record of her adjudication of insanity, but to show at that very time that she was an inmate of an insane asylum. Under the general rule, this proof established a prima-facie case that the witness was of unsound mind. Tiffany v. Tiffany, 84 Iowa 122, 50 N.W. 554; Chavannes v. Priestley, 80 Iowa 316, 45 N.W. 766; Weber v. Chicago, R. I. & P. R. Co., 175 Iowa 358; 28 Ruling Case Law 452, 151 N.W. 852. Dean Wigmore states the rule thus:
"It is generally accepted that the fact that the witness is, at the time of testifying, or was shortly beforehand, a lawful inmate of an asylum for mental disease or defect, or an adjudged lunatic or defective, makes it necessary that his capacity should be examined into, and an express finding appear." 1 Wigmore on Evidence (2d Ed.), Section 497, page 917.
See State v. Cremeans, 62 W.Va. 134, 57 S.E. 405; Hale v. Commonwealth, 196 Ky. 44 (244 S.W. 78).
Not only was the defendant precluded from making a showing of the incompetency of the witness at the initial stage of the proceeding, but he was also denied the right to have the witness examined on her voir dire before she was sworn. The rule of better practice recognizes that it is the privilege of the objector to have the witness tested in this manner. State v. Comeaux, 142 La. 651 (77 So. 489); White v. State, 52 Miss. 216.
The charge of imbecility of the prosecutrix, as found in the indictment, did not in itself disqualify her as a witness and appellant makes no such claim. The controlling question is the right of the defendant to have the competency of the witness tested and determined in the first instance by the court; as it is shown that the witness, when offered, was presumptively insane. Under such circumstances, the question should be determined by the court before the witness is sworn. It is the logical process, and sustained by well defined precedent. If the challenged witness passes the examination by the court, and is sworn, evidence of his mental capacity may be introduced, and considered by the jury, as bearing upon his credibility and his degree of intelligence. Ellarson v. Ellarson, 198 A.D. 103 (190 N.Y.S. 6). Under the instant record, however, and in view of our conclusion upon another branch of this case, we shall not reverse by reason of the failure of the trial court to rule the objections of the appellant in conformity to the rule of better practice. It is shown that both the State and the defendant offered evidence quite fully upon the formal trial, bearing upon the question of competency of the...
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