State v. Wildman

• Decision Date: 13 June 1945
• Docket Number: 30160.
• Citation: 61 N.E.2d 790,145 Ohio St. 379
• Parties: STATE v. WILDMAN.
• Court: Ohio Supreme Court

61 N.E.2d 790

145 Ohio St. 379

STATE v. WILDMAN.

No. 30160.

Supreme Court of Ohio

June 13, 1945

Syllabus by the Court.

1. Under Section 11493, General Code, which provides that 'all persons are competent witnesses except those of unsound mind, and children under ten years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly,' an insane person is not absolutely incompetent as a witness by reason of his insanity and, the statute being declaratory of the common law, his competency must be determined according to common-law principles.

2. The competency of an insane person to testify as a witness lies in the discretion of the trial judge and a reviewing court will not disturb the ruling thereon where there is no abuse of discretion.

3. A person who is able to correctly state matters which have come within his perception with respect to the issues involved and appreciates and understands the nature and obligation of an oath, is a competent witness notwithstanding some unsoundness of mind.

Appeal from Court of Appeals, Trumbull County.

BELL J., dissenting in part.

On January 13, 1944, the grand jury of Trumbull county returned an indictment against the defendant, Francis Wildman charging that 'one Francis Wildman on or about the 8th day of September in the year of our Lord one thousand nine hundred and forty-three, at the county of Trumbull aforesaid, unlawfully and maliciously broke and entered the dwelling house of one Luman M. Hunt in the daytime, with intent to commit a felony.'

The defendant entered a plea of not guilty and the cause came on for trial.

The felony which the state undertook to prove the defendant had intent to commit is defined by Section 13025, General Code, which provides:

'Whoever, being a male person over seventeen years of age, has carnal knowledge of an insane woman not his wife, knowing her to be insane, shall be imprisoned in the penitentiary not less than three years nor more than ten years.'

To establish felonious intent on the part of the defendant the state offered evidence tending to show that then and there he had sexual intercourse with an insane person, namely Ruth Hunt.

The evidence on behalf of the state (aside from the testimony of Hazel and Ruth Hunt) showed the following facts:

Two imbecile girls, Hazel and Ruth Hunt, aged about 21 and 23 years respectively, resided with their father, Luman Hunt, on his farm at Bloomfield, Trumbull county, Ohio. On September 8, 1943, he was absent from home for the day, being employed at Lordstown Ordnance Depot, and the two girls were left alone at home. About nine o'clock on that date, and during the absence of the father, the defendant parked his truck loaded with coke in front of the Hunt home, got out and examined the motor. Thereupon he went to the front door of the Hunt house, from there to the back door, and then back to the front door. The second time he came to the front door, he 'appeared to be doing something' to it. He then opened the door and walked in.

After he had gone into the house, Mrs. Barbe, a neighbor living directly across the way, came over and found Hazel in the house. Mrs. Barbe testified:

'Q. What did you do or say in the house? A. Well, when I found out they were upstairs, I went to the stair door and called Ruth.

'Q. Did she answer? A. She didn't answer me.

'Q. Did anyone answer? A. No one answered.

'Q. Then what did you do? A. Well, I thought quite awhile to know just what to do. I was going up, but I didn't. So I said pretty soon after I talked to Hazel a little bit, 'I guess I will call the sheriff,' and Hazel said, 'I wish you would.' And I said it good and loud, and I was right under the bedroom, and immediately I heard footsteps.

'Q. Now tell the jury the general appearance of Hazel when you went in the house. A. She was so excited that I couldn't hardly understand a word the girl said. * * *

'Q. Did you see anyone come downstairs? A. I seen Mr. Wildman come down stairs.

'Q. You know him, do you? A. Yes.

'Q. Did he come out of the house? A. I am not personally acquainted with him if that's what you want to know but he has been in our home at threshing time.

'Q. You know him when you see him? A. I know him when I see him.

'Q. Could you state to this jury positively who it was you saw come down the stairs? A. Yes.

'Q. Was it Francis Wildman? A. It was Francis Wildman.

'Q. Did he come out of the house then? A. I came out after he went into the bedroom, he came down stairs while I was in the dining room and I turned around and seen him slip into the bedroom like that and I went out on the front porch and stood at the steps until he went out the back door and then I talked to him.

'Q. What did you say to Wildman, Francis Wildman, at that time and what did he say to you? A. I said to him, 'What do you think of yourself anyway?' And he says, 'Why?' and I says 'You know why.' And he says, 'Some folks think they know a lot they don't know,' and I said, 'I know all I want to know. I should think you would be ashamed of yourself.' That's all I said to him.'

When the father of the girls came home at night, he found a hole cut in the screen next to the hook at the edge.

The foregoing is, in substance, the testimony of all the witnesses as to the facts immediately surrounding the transaction, except that of Ruth and Hazel Hunt, and the defendant.

Ruth Hunt testified that she was 22 years of age, and that the defendant came to her house, took her by the arm, coaxed her to go upstairs to her bedroom, took her clothes off, and laid her across the bed. Thereupon, in response to the question 'and then what did he do,' she answered in vulgar language to he effect that he had sexual intercourse with her.

Hazel Hunt testified that the defendant came to their home; that he cut a hole in the screen door with a knife held in his hand; that he took Ruth by the arm and led her upstairs; and that Mrs. Barbe came over and told Ruth to come down stairs. On cross-examination Hazel testified that she was nine years old and, after being cross-examined for some time, her testimony became contradictory as to whether Ruth was or was not dressed when she came down stairs after she had been up there with the defendant. This testimony and the testimony relating to the competency of Hazel and Ruth as witnesses will be referred to in the opinion. Only one physician testified and he was called by the prosecution. He stated that he had examined Ruth Hunt on the first day of the trial, February 2, 1944, and then found that she had been pregnant for about five months.

The defendant took the stand in his own behalf. He stated that he had stopped in the road in front of the Hunt home to fix a rattle in the front part of the truck; that he went into the Hunt home for the purpose of getting a paper that the girls had with his name and address written on it; that his purpose was to prevent them from writing to him; that he did not cut the screen; that he was not in the house more than five minutes and after obtaining the paper, left; and that he saw Mrs. Barbe outside and had some conversation with her.

The defendant was found guilty as charged and sentenced accordingly.

The Court of Appeals affirmed the judgment of sentence and this court allowed a motion for leave to appeal.

G. P. & M. E. Gillmer, David M. Griffith, and Clarence H. Klinger, all of Warren, for appellant.

William M. McLain, of Warren, for appellee.

WILLIAMS Judge.

There is ample evidence to sustain the conviction even if the testimony of Ruth and Hazel Hunt is excluded from consideration.

Counsel for the defendant expressly stated in open court in the final hearing that the only ground of reversal now contended for is that the Court of Common Pleas erred in holding that Ruth Hunt and Hazel Hunt were competent to testify.

Ruth was the first of these young women to be called to the witness stand. Counsel for defendant promptly objected to her testimony and cited to the court, Section 11493, General Code, which reads as follows:

'All persons are competent witnesses except those of unsound mind, and children under ten years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.'

Later when Hazel was called to the witness stand the same objection was made.

In each instance the court overruled the objection and these witnesses testified.

Section 11493, General Code, was under consideration in Pittsburgh & W. Ry. Co. v. Thompson, 6 Cir., 82 F. 720. The court was then composed of Judges Taft, Lurton and Sage. In rendering the opinion Judge Lurton, at page 727 of 82 F. used this language:

'But it is said that the Ohio statute makes a person of unsound mind absolutely incompetent.'

After quoting Section 5240, Revised Statutes (now Section 11493, General Code, and unchanged in wording), he continued:

'But the question remains, who is a person of unsound mind? That the person has been found insane, and is an inmate of an insane asylum, affords prima facie evidence that he is of unsound mind, within the meaning of the provision, and operates to throw the burden of proving competency upon the party offering him. * * * Whether he was so unsound in mind and memory as to be totally incapable of testifying is as open a question under this statute as at the common law. The statute is but a declaration of the common law. To suppose that it was meant to disqualify every person who is of any degree of unsoundness would bring about an intolerable condition of things, and, under such circumstances, it is not to be presumed that the common law was...