State v. Simes

• Decision Date: 26 April 1906
• Citation: 12 Idaho 310,85 P. 914
• Parties: STATE, Respondent, v. MILT SIMES, Appellant
• Court: Idaho Supreme Court

85 P. 914

12 Idaho 310

STATE, Respondent, v. MILT SIMES, Appellant

Supreme Court of Idaho

April 26, 1906

CRIMINAL LAW-RAPE-LUNATIC CANNOT CONSENT-LUNATIC AS WITNESS-COMPETENCY OF WITNESS-CREDIBILITY OF WITNESS-LEADING QUESTIONS.

1. Under section 5957, Revised Statutes, which provides that persons "of unsound mind at the time of their production" cannot be witnesses, a person who can apprehend the obligation of an oath and is capable of giving a fairly correct account of the things he has seen or heard is competent as a witness, although he may be afflicted with some form of insanity.

2. The examination of the person offered as a witness for the purpose of testing his competency should be made with special reference to the scope of inquiry and subject matter about which the witness is to testify.

3. Incapacity to give intelligent and legal consent to the commission of an act does not necessarily imply incapacity to thereafter correctly and truthfully narrate the facts constituting the commission of the act.

4. The fact that the state accuses a defendant with rape in having had carnal knowledge of a female who was at the time of unsound mind and incapable of giving consent does not per se establish the incompetency of such female to testify against the accused.

5. ID.-In such case the accused may object to the witness testifying on the grounds of incompetency, and the court will examine into and pass upon the grounds of the objection in the same manner and to the same extent as if made against the competency of any other witness.

6. Where objection is made as to the competency of a witness to testify, the court should examine the witness for the purpose of determining his competency, and may call and examine other witnesses touching such question.

7. After the court has determined that a person is competent to testify as a witness, the credibility of the witness immediately becomes a question to be determined by the jury.

8. The action of the trial court in permitting leading questions is largely discretionary, and is properly exercised in the allowance of such questions in the examination of a feeble or simple-minded person.

(Syllabus by the court.)

APPEAL from the District Court of the Second Judicial District for the County of Latah. Hon. Edgar C. Steele, Judge.

The appellant, Milt Simes, was convicted of the crime of rape committed on a female of unsound mind, and sentenced to imprisonment in the state penitentiary for a term of six years. From the judgment and an order denying his motion for a new trial be appealed. Judgment affirmed.

Affirmed.

William M. Morgan, and Albert L. Morgan, for Appellant.

When the mental deficiency of a witness is brought to the attention of the court, it becomes the duty of the court, of his own motion, to propound questions to the witness tending to determine his qualifications or lack of qualifications to testify. (People v. Bearnal, 10 Cal. 67, citing People v. McNair, 21 Wend. 609.)

Since the prosecutrix is the only witness who testified to any material facts against the defendant, we are confronted with the proposition that a defendant has been convicted upon the uncorroborated testimony of one who is alleged in the information to be by statute prohibited from testifying.

The trial court abused the discretion which the law has vested in him in cases of this kind, by permitting the use of leading questions. (Coon v. People, 99 Ill. 368, 39 Am. Rep 28.)

The evidence, even conceding that the prosecutrix was a competent witness, is insufficient upon which to base the verdict and judgment, and the trial judge should have granted a new trial for that reason. His refusal to do so was reversible error. (State v. Baker, 6 Idaho 496, 56 P. 81; State v Anderson, 6 Idaho 706, 59 P. 180.)

J. J Guheen, Attorney General, Edwin Snow and Philip Hindman, for Respondent.

There is nothing arbitrary about a statutory rule in this or any other state prohibiting a witness of unsound mind from testifying. (1 Wigmore on Evidence, secs. 492, 501.)

Statutes providing that persons of unsound mind shall be incompetent (to testify) are generally held merely declaratory, and such persons are excluded in those jurisdictions only when unsound of mind to a degree that would exclude them at common law. (30 Am. & Eng. Ency. of Law, 934, citing P. & W. Ry. Co. v. Thompson, 82 F. 720, 27 C. C. A. 333; Cannady v. Lynch, 27 Minn. 435, 8 N.W. 164; City of Guthrie v. Shaffer, 7 Okla. 459, 54 P. 698; Clements v. McGinn (Cal.), 33 P. 920.)

A verdict will not be set aside on the ground that the witness was incompetent, where it appears from the record that he has sufficient capacity to understand the nature and obligation of an oath, and his evidence shows him to be intelligent. (Wolfforth v. State, 31 Tex. Cr. 387, 20 S.W. 741; 50 Century Digest, "Witnesses," sec. 99, citing District of Columbia v. Armes, 107 U.S. 519, 27 L.Ed. 618, 2 S.Ct. 840; Walker v. State, 97 Ala. 85, 12 So. 83; Gore v. State, 119 Ga. 418, 100 Am. St. Rep. 182, 46 S.E. 671.)

The question of a preliminary examination to test the competency of a witness is entirely discretionary with the trial court. (Robinson v. Dana, 16 Vt. 474; Holcomb v. Holcomb, 28 Conn. 177; People v. Baldwin, 117 Cal. 244, 49 P. 186; Pittsburg & Western Ry. Co. v. Thompson, 82 F. 720, 27 C. C. A. 333.)

Leading questions will be permitted in the case of witnesses whose weakness of intellect precludes their testifying in the ordinary way. (People v. Bowers (Cal.), 18 P. 660; 50 Century Digest, "Witnesses," sec. 854, citing Huffman v. Cauble, 86 Ind. 591; Brassell v. State, 91 Ala. 45, 8 So. 679; State v. Bauerkemper, 95 Iowa 562, 64 N.W. 609; Ellis v. State, 25 Fla. 702, 6 So. 768; McLean v. City of Lewiston, 8 Idaho 472, 69 P. 478; Armstead v. State, 22 Tex. App. 51, 2 S.W. 627; Ham v. State (Tex. Cr. App.), 78 S.W. 929; Welsh v. State, 60 Neb. 101, 82 N.W. 368; State v. Burns, 119 Iowa 663, 94 N.W. 238.)

AILSHIE, J. Stockslager, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

The accused in this case was charged by information of the public prosecutor with the crime of rape, in that he did, at a time and place designated, "have sexual intercourse with a female not his wife, to wit, one Bessie Jones, being then and there a female not the wife of the said defendant and incapable through lunacy and unsoundness of mind of giving legal consent." Section 6765, Revised Statutes, as amended by act of February 7, 1899 (Sess. Laws 1899, p. 167), defines rape as follows: "Rape is an act of sexual intercourse accomplished with a female not the wife of the perpetrator, under either of the following circumstances: . . . . Second. Where she is incapable through lunacy, or any other unsoundness of mind, whether temporary or permanent, of giving legal consent."

At the trial the state produced as its first witness the prosecutrix, Bessie Jones, and after she was sworn, the attorney for the defendant called the attention of the court to the fact that the witness about to be examined by the state was the prosecutrix, and that the information charged her with lunacy and unsoundness of mind, and counsel thereupon requested the court "to propound such questions to her as will determine her ability to understand them." To which request the court replied: "The court refuses; you may do so." Counsel for defendant replied: "We don't wish to; we except." This action of the court is the principal error assigned. The prosecuting attorney thereupon proceeded to examine the witness and defendant's counsel cross-examined her, from all of which evidence as the same occurs in the record, it is quite clear that the witness, though very simple and childlike, was competent to testify. Section 5957, Revised Statutes, provides that: "The following persons cannot be witnesses: 1. Those who are of unsound mind at the time of their production," etc.

It is to be observed that the unsoundness of mind required to disqualify such witness must exist "at the time of their production" for the purpose of giving testimony. The statute does not undertake to prescribe or define the amount or degree of mental unsoundness that must exist in order to disqualify the witness, but the reason for the existence of such a statute should be invoked, and we interpret that reason to require that the witness should have some apprehension of the obligation of the oath, and that he shall be capable of giving a fairly correct account of the things he has seen or heard; and this test should be made with special reference to the field of inquiry and character of the subject on which the witness is to give testimony. It would be clearly unfair to test the competency of the witness on the particular subject on which he is insane, when in fact he would not be called upon to testify on that subject, and, indeed, he might be perfectly rational and clear on other subjects. We think, as was said in Clements v. McGinn, 4 Cal. Unrep. 163, 33 P. 920, that "An insane person is competent to be a witness if he understands the nature of an oath, and has sufficient mental power to give a correct account of what he has seen or heard." (District of Columbia v. Armes, 107 U.S. 519, 27 L.Ed. 618, 2 S.Ct. 840; 1 Wigmore on Evidence, secs. 492-497; Wright v. Southern Express Co., 80 F. 85; Pittsburgh & W. Ry. Co. v. Thompson, 82 F. 720, 27 C. C. A. 333; Cannady v. Lynch, 27 Minn. 435, 8 N.W. 164; 2 Elliott on Evidence, secs. 751-759; City of Guthrie v. Shaffer, 7 Okla. 459, 54 P. 698; Walker v. State, 97 Ala. 85, 12 So. 83; Underhill on Criminal Evidence, secs. 202, 203, 30 Am. & Eng. Ency. of Law, 2d ed., 934.) For a learned and interesting case stating the modern English rule, see Regina v. Hill, 5 Cox C. C. 259; S. C., 2...