State v. Schweider

• Decision Date: 02 January 1959
• Citation: 94 N.W.2d 154,5 Wis.2d 627
• Parties: STATE of Wisconsin, Plaintiff and Respondent, v. William SCHWEIDER, Defendant and Appellant.
• Court: Wisconsin Supreme Court

Page 154

94 N.W.2d 154

5 Wis.2d 627

STATE of Wisconsin, Plaintiff and Respondent, v. William SCHWEIDER, Defendant and Appellant.

Supreme Court of Wisconsin.

Jan. 2, 1959.

Nathaniel D. Rothstein, Paul C. Konnor, Milwaukee, for appellant.

Stewart G. Honeck, Atty. Gen., William A. Platz, Asst. Atty. Gen., David Weber, Dist. Atty., Sheboygan County, Sheboygan, for respondent.

HALLOWS, Justice.

The defendant assigns as error the overruling of his challenge to the testimony of Senglaub, the prosecuting witness, for the reason that the witness was mentally incompetent and had no respect for the truth. The court allowed in evidence the official record of the county court of Sheboygan county in the guardianship proceedings of Senglaub in which a guardian was appointed for him on January 22, 1957 on the ground he was an incompetent. The defendant stated he was prepared to aid the trial court and to offer medical testimony in support of his objection. The court stated that if it subsequently developed that the court would like medical testimony it would advise counsel. The court then conducted a voir dire examination of Senglaub under sec. 325.30, stats., and found him competent to testify.

Testimony of the witness shows some confusion about details and a forgetfulness, probably not too unusual in a man of 86 years of age. The inconsistencies in his testimony do not give rise to the inference that he consciously testified falsely. On the voir dire his answers were generally responsive and correct. He understood his obligation to tell the truth and the difference between right and wrong, and comprehended the nature and obligation of the oath.

A witness may be competent to testify although in some respects he is mentally unsound or has some mental impairment, but where a witness is so impaired that he does not understand the obligations of an oath or has no respect for the truth, he is not competent. Short of such substantial total impairment an infirmity goes to the credibility of the testimony and not to the competency of the witness. Competency has two aspects: (1) the mental capacity to understand the nature of the questions and to form and communicate intelligent answers thereto; (2) the moral responsibility to speak the truth, which is the essence of the nature and obligation of an oath.

The trial court is generally in a better position to judge the competency of the witness than the appellate court. In this case the trial judge had some 20 years experience in dealing with aged people while serving as county judge. The determination of competency is for the trial court and will not be reversed unless clearly and manifestly wrong. The above rule as to competency of a mentally impaired witness has been laid down in this state in Burns v. State, 1911, 145 Wis. 373, 128 N.W. 987; Pawlak v. Pelkey, 1918, 167 Wis. 367, 167 N.W. 427; Markowitz v. Milwaukee Electric Ry. & Light Co., 1939, 230 Wis. 312, 284 N.W. 31; Hancock v. Hallmann, 1938, 229 Wis. 127, 281 N.W. 703. The trend of the cases indicates there is little question of the competency of a mentally deficient witness if he is capable of appreciating the nature of an oath and able to answer questions with a reasonable degree of accuracy. Annotation, Mental Condition as Affecting Competency of Witnesses, 148 A.L.R. 1140. The rationale of this rule is explained in District of Columbia v. Arms, 1883, 107 U.S. 519, 2 S.Ct. 840, 27 L.Ed. 618.

The discrepancies pointed out by the defendant in the testimony of the witness at the trial and with testimony given prior thereto go to the question of credibility after the witness' competency has been established. It was for the jury to accept such parts of the contradictory testimony as it believed. De Groot v. Van Akkeren, 1937, 225 Wis. 105, 273 N.W. 725. It is better in cases of mental deficiency to let the jury reject the nonsense and accept such sense as is evidence than to disqualify all testimony on the ground of incompetency. 2 Wigmore on Evidence, 3rd Ed., p. 594, sec. 501.

The record shows the witness, understood what he was saying and the obligation of the oath. He desired to speak the truth; he believed in God and that he would be punished if he lied. We conclude there was no error in finding the witness competent to testify.

While it was possible at any time during the trial for the court to reverse itself if it believed it had made a mistake and to hold the witness incompetent in view of his later testimony, the court did not do so and the defendant did not move to strike out the testimony on the ground the witness had demonstrated his incompetency. State v. Moorison, 1953, 43 Wash.2d 23, 259 P.2d 1105; State v. Zeezich, 1922, 61 Utah 61, 210 P. 927.

The defendant cannot complain that the trial court did not admit medical testimony on the voir dire examination. While the court has the discretion to allow such evidence to aid him, and such is the implication in State v. Wrosch, 1952, 262 Wis. 104, 53 N.W.2d 779, the defendant here did not make a proper offer of proof of such evidence at the time of the voir dire or at any time thereafter. The court was determining the competency of the witness who was not on trial and whose insanity, if any, was not an issue as such.

In his second assignment of error the defendant claims the evidence does not support the verdict. A detailed discussion of the evidence would extend this opinion to an unwarranted length. The conviction stands on the following facts and reasonable inferences which the jury could well draw therefrom.

On May 4, 1957 the prosecuting witness, George Senglaub, 86 years of age, was digging potato holes with a fork in his garden, in the village of Waldo. He heard a noise and looking up saw the defendant with a club upraised. Senglaub testified the defendant struck him, knocked him to the ground and continued to flail him on both hands. After he regained consciousness he walked to his house and called for help. His testimony as to the time of the assault is conflicting but the most probable time is around 2:30 o'clock in the afternoon. Mrs. Ford, a neighbor to the west of Senglaub, found him and summoned other neighbors for help. At that time Senglaub was in bad shape and was bleeding from a puncture wound in his left elbow. One hand was bloody and both hands were swollen and out of a shape. There were black and blue marks around his neck and he had welts on his right arm which were swelling and discoloring. He was in a state of shock. He was removed to a hospital, where he remained until June 8, 1957.

Mrs. Ford, shortly after discovering Senglaub, went to the defendant, who lived immediately to the south of Senglaub, and asked him and his wife to come over to see what had happened to Senglaub. The defendant and his wife refused to go, stating they preferred to remain on their own property.

The sheriff was summoned by one of the neighbors and in the course of their investigation found signs of a scuffle in the garden and drops of blood on the walk leading to the back door of Senglaub's house and into the kitchen.

The defendant's testimony was to the effect that neither he nor his wife was on Senglaub's property on the day of the alleged assault or had seen or heard Senglaub that day. The defendant had been working in his backyard on a car, about 10 feet from the Senglaub property line, during the day. The defendant, when interviewed by the sheriff, denied all connection with the assault and maintained his innocence throughout the trial.

The day following the alleged attack the defendant, while on bail, appeared at the hospital with his wife and brother at the request of the district attorney and was identified by the prosecuting witness. At first Senglaub pointed to the defendant's brother and later, after putting on his glasses, pointed out the defendant.

There was testimony the reason the defendant and his wife did not go over to Senglaub's home when Mrs. Ford requested them was that Senglaub was an irresponsible person who had made false accusations against the defendant and they preferred to remain on their own property and not become involved.

Testimony also showed Senglaub, a week prior to the alleged assault, attempted to strike the defendant's mother with a cane without provocation, and also on one occasion attempted to strike the defendant with a shovel. Senglaub had accused the defendant of stealing some tools and Senglaub was regarded by the defendant as being a crazy man and a nuisance. There was also testimony the defendant had made an offer to purchase the home of Senglaub, which apparently fell through when relatives of Senglaub had a guardian appointed for him. There was also testimony, disputed by the defendant, that a bad relationship between the defendant and Senglaub existed for about two years prior to the alleged assault.

There were no eyewitnesses to the assault and although a search was made of Senglaub's and of the defendant's property no club or other instrument was identified or put in evidence as the instrument used in the alleged attack. Medical testimony was to the effect that Senglaub was badly injured, with fractures of both forearms, severe contusions and abrasions about the arms, shoulders and face and with a puncture wound on his left elbow. The fractures, two in the right forearm and one just below the left elbow, were of a type unlikely to be received in a fall. The defense was based...