State v. Moorison

• Decision Date: 29 July 1953
• Docket Number: No. 32357,32357
• Court: Washington Supreme Court
• Parties: STATE, v. MOORISON.

Page 23

43 Wn.2d 23

259 P.2d 1105

STATE, v. MOORISON.

No. 32357.

Supreme Court of Washington, Department 1.

July 29, 1953.

Aurel M. Kelly, Walla Walla, for appellant.

Murray E. Taggart, Herbert H. Freise, Walla Walla, Vaughn Hubbard, Waitsburg, for respondent.

HILL, Justice.

The principal question presented by this appeal is the competency of a witness who previously had been adjudged insane.

Appellant Theodore E. Moorison was charged with assault in the second degree upon the person of his wife, and was convicted of assault in the third degree.

The defendant, appellant here, filed a motion June 13, 1952, for a continuance to the next ensuing jury term, on the ground that 'documentary evidence material and vital' to the defense could not be secured by June 25, 1952, the trial date. It appeared in the affidavit filed in support of the motion and in the argument on the motion, that on October 19, 1942, a county court in Colorado had adjudged Nina Moorison, then Nina Anderson, to be insane, and had committed her to the Colorado State Hospital; that shortly thereafter, November 5, 1942, the order of commitment (but not the adjudication of insanity) was vacated and an order was entered committing her to the custody of her then husband, Jess Anderson; and it was believed that it would be possible to obtain the record of the commitment hearing if the time was extended to permit a search of certain vaults where the record was believed to be stored.

The motion for continuance having been denied June 16, 1952, counsel for the defendant on the following day made an oral motion for an order requiring the county of Walla Walla to pay the expenses of taking depositions of the persons in charge of the court records and the hospital records having to do with Nina Moorison's commitment in Colorado in 1942. During the course of the argument on this oral motion, counsel renewed the motion for a continuance. The court denied the motion to have depositions taken at county expense and adhered to its former denial of a continuance.

At the trial, the state offered Nina Moorison as its first witness. The defendant took the position that she was not a competent witness under RCW 5.60.050 [cf. Rem.Rev.Stat. § 1213], which in so far as here material reads as follows:

'The following persons shall not be competent to testify:

'(1) Those who are of unsound mind, or intoxicated at the time of their production for examination; and

'(2) * * *.'

Certified copies of both orders by the Colorado court and of a letter dated October 18, 1942, written on the letterhead of the University of Colorado School of Medicine and Hospitals and signed by Robert W. Davis, M. D., resident psychiatrist, stating, inter alia, that 'Mrs. Anderson was admitted to this Hospital 9/28/42, suffering from a paranoid condition,' were brought to the attention of the trial court.

The prosecuting attorney stated that, as part of the state's case, a doctor would testify that Nina Moorison was sane.

The trial court did not at that time make an express ruling on Nina Moorison's competency, but said: 'I am ruling that the witness can be sworn and testify. He [the prosecuting attorney] has offered to rebut this record.' This ruling was excepted to, but it was not then suggested that all the evidence on the issue of competency should be taken prior to receiving the witness' testimony.

At the conclusion of Nina Moorison's testimony, the defendant moved that it be stricken for the reason that she was not a competent witness. The motion was denied.

When called as a witness during the presentation of the state's case, the doctor who had been treating the challenged witness prior to the assault and who took care of her injuries after the assault, testified that in his opinion she was sane during his acquaintance with her, a period of about a year and a half.

The motion that Nina Moorison's testimony be stricken was renewed at the conclusion of the state's case and again denied. It was renewed again after both sides had rested, and the trial court stated that she appeared 'to be in full possession of her mental faculties.' Then occurred the following colloquy:

'Mrs. Kelly: You are ruling she is competent to testify?

'The Court: She can testify and her testimony will stand.

'Mrs. Kelly: You are ruling that she is competent to testify?

'The Court: Yes.'

In eleven assignments of error, appellant argues ably and vigorously that, under RCW 5.60.050, a person who has been adjudged insane cannot be competent to testify until it has been adjudicated that he has been restored to mental competency.

Under the rules of the early common law, a person who had been adjudged insane was absolutely incompetent as a witness. The rigor of that rule has been modified in consequence of an evolution in juristic thinking and progress in public understanding of mental derangements. State v. Wildman, 1945, 145 Ohio St. 379, 61 N.E.2d 790; State v. Wrosch, 1952, 262 Wis. 104, 53 N.W.2d 779; 2 Wigmore on Evidence, 3d Ed., 583, § 492; 58 Am.Jur. 92, Witnesses, § 118.

The generally recognized common-law rule now is that an insane person is competent to testify if at the time of his presentation as a witness he understands the nature of an oath and is capable of giving a correct account of what he has seen and heard. District of Columbia v. Armes, 1883, 107 U.S. 519, 2 S.Ct. 840, 27 L.Ed. 618; Lockard v. Parker, 4 Cir., 1947, 164 F.2d 804; Shupp v. Farrar, 1949, 85 Ohio App. 366, 88 N.E.2d 924; annotations, 26 A.L.R. 1491, 148 A.L.R. 1140. And this is the rule even though there has been a formal adjudication of insanity. See cases cited infra. An excellent explanation of the rationale of the rule is to be found in Mr. Justice Field's opinion in District of Columbia v. Armes, supra.

It is the appellant's contention that our statute hereinabove quoted changes the common-law rule and renders incompetent as a witness any person who has been adjudged to be mentally incompetent or insane, until there has been an adjudication of restoration to mental competency.

This specific question has not heretofore been presented to this court. In several cases we have upheld the action of the trial court in permitting persons claimed to be incompetent to testify, but in some of those cases we have made reference to the fact that the witness had not been adjudged to be mentally incompetent or insane. Czarecki v. Seattle & San Francisco R. & Nav. Co., 1902, 30 Wash. 288, 70 P. 750; State v. McMullen, 1927, 142 Wash. 7, 252 P. 108; State v. Hardung, 1931, 161 Wash. 379, 297 P. 167; Sumerlin v. Department of Labor & Industries, 1941, 8 Wash.2d 43, 111 P.2d 603. However, this specific question has been passed upon in other states having similar statutes, and uniformly such statutes have been held to be but declaratory of the common law. We shall confine our citations and quotations to those states having statutes comparable to our own. For a more complete listing of authorities on this point, see 26 A.L.R. 1499, 148 A.L.R. 1147.

In Skelton v. State, 1947, 148 Neb. 30, 26 N.W.2d 378, 380, the defendant, a guard at a state mental hospital, was convicted of an assault upon one of the inmates. Three of the witnesses against him were likewise inmates of the institution. The Nebraska statute, so far as material, read:

"The following persons shall be incompetent to testify: (1) Persons of unsound mind at the time of their production; * * *.' Section 25-1201, R.S.1943.'

The supreme court of Nebraska stated the position of the defendant in these words:

'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.'

The court's holding, as stated in the syllabus prepared by the court, was as follows:

'1. Witnesses. 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.'

In State v. Herring, 1916, 268 Mo. 514, 188 S.W. 169, 173, the conviction of one of the attendants at an insane asylum for the murder of a patient was affirmed. The Missouri statute provided:

"The following persons shall be incompetent to testify: First, a person of unsound mind at the time of his production for examination,' etc. Section 6362, R.S.1909 [V.A.M.S. § 491.060].'

In passing upon the competency of a witness who had been adjudged insane and committed to the asylum, the supreme court of Missouri, after an exhaustive review of the authorities at common law and in other states having similar statutes, set out its conclusions with admirable brevity and clarity in these words:

'From the rule cases we may deduce the rules: (a) That a person of unsound mind is competent as a witness, if (1) upon examination he be found to be of sufficient mental capacity to understand the nature of an oath--that is, to know it is both a moral and a legal wrong to swear falsely, and that false swearing is a punishable crime in law, and (2) if he be possessed of sufficient mind and memory to observe, recollect, and narrate the things he saw or...