State v. Leonard

• Decision Date: 30 August 1932
• Docket Number: No. 7002.,7002.
• Citation: 244 N.W. 88,60 S.D. 144
• Parties: STATE v. LEONARD.
• Court: South Dakota Supreme Court

60 S.D. 144

244 N.W. 88

STATE

v.LEONARD.^a1

No. 7002.

Supreme Court of South Dakota.

August 30, 1932.

Appeal from Circuit Court, Aurora County; R. C. Bakewell, Judge.

Louis Leonard was convicted of rape in the first degree, and he appeals.

Affirmed.Fellows, Fellows & Whiting, of Mitchell, for appellant.

M. Q. Sharpe, Atty. Gen., and Herman L. Bode, Asst. Atty. Gen., for the State.

CAMPBELL, P. J.

Defendant was charged with having had sexual intercourse with a girl who was a few months under the age of eighteen years and who was claimed to be mentally incapable of legal consent. The information was in two counts, one charging rape in the first degree (subdivision 2, § 4092, R. C. 1919; section 4095, R. C. 1919) by intercourse with a female incapable of giving legal consent by reason of unsoundness of mind, and one charging rape in the second degree (subdivision 1, § 4092, R. C. 1919; § 4096, R. C. 1919) by intercourse with a female under the age of eighteen years. The jury returned a verdict finding the defendant guilty of rape in the first degree, and from judgment thereon and denial of his application for new trial he has appealed.

The female in question testified as a witness in behalf of the state. Appellant in substance admits that she was mentally deficient to such a degree as to render her incapable of legal consent to intercourse, but urges that such mental deficiency likewise rendered her incompetent as a witness.

[1][2][3] It seems to be generally conceded (with the possible exception of Texas, as indicated by White v. State, 109 Tex. Cr. R. 266, 4 S.W.(2d) 37), that a degree of mental unsoundness which renders a female incapable of legally consenting to sexual intercourse does not necessarily render her incompetent as a witness. See case note 26 A. L. R. 1491 at page 1502. So far as concerns testimonial competency, the same general principles apply to mental derangement or deficiency as to mental immaturity. The broad general principle is that a witness should have sufficient mental capacity to observe, recollect, and communicate, and some sense of moral responsibility; that is, as phrased by Professor Wigmore, some realization of “the duty to make the narration correspond to the recollection and knowledge.” The competency of a mentally immature or deranged witness presents questions very closely related to those involved with the matter of credibility of a witness. Many recognized authorities upon the law of evidence deem it doubtful policy entirely to exclude any such witnesses. “The tendency of modern times is to abandon all attempts to distinguish between incapacity which affects only the degree of credibility and incapacity which excludes the witness entirely. The whole question is one of degree only, and the attempt to measure degrees and to define that point at which total incredibility ceases and credibility begins is an attempt to discover the intangible. The subject is not one which deserves to be brought within the realm of legal principle, and it is profitless to pretend to make it so Here is a person on the stand; perhaps he is a total imbecile, in manner, but perhaps, also, there will be a gleam of sense here and there in his story. The jury had better be given the opportunity of disregarding the evident nonsense and of accepting such sense as may appear. There is usually abundant evidence ready at hand to discredit him when he is truly an imbecile or suffers under a dangerous...