In State v. Wildman (1945), 145 Ohio St. 379, 31 O.O. 5, 51 N.E.2d 790, the Ohio Supreme Court held that a person of unsound mind is not absolutely incompetent as a witness; the competence of such a person to testify must be determined by the court.Id. at 386-387, 31 O.O. at 8, 61 N.E.2d at 793-794.Summary of this case from State v. Kinney
Decided June 13, 1945.
Evidence — Insane person not absolutely incompetent as witness — Section 11493, General Code — Competency determined according to common-law principles — Appeal — Trial court's ruling not disturbed in absence of abuse of discretion — Person competent witness, notwithstanding some unsoundness of mind, when.
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 the Court of Appeals of Trumbull county.
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 the 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.
Mr. William M. McLain, for appellee.
Messrs. G.P. M.E. Gillmer, Mr. David M. Griffith and Mr. Clarence H. Klinger, for appellant.
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, 82 F., 720. The court was then composed of Judges Taft, Lurton and Sage. In rendering the opinion Judge Lurton, at page 727, 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 intended to be altered or modified to any greater extent than indicated by a reasonable construction of the words of the statute. To say that a person of unsound mind is incapable of testifying is but to state the general rule of the common law. But at the common law the unsoundness must be such as that he is incapable of understanding the nature of an oath or giving a coherent statement touching the matter upon which he is examined."
Since the early days of the common law there has been an evolution in juristic thinking respecting witnesses non compos mentis. Professor Wigmore says in 2 Wigmore on Evidence (3 Ed.), 583, Section 492:
"There was a period (and it has not so long passed away) when the deranged and the defective, in the superstitious belief of earlier times, which regarded madness as an infliction sent from Heaven, were treated as incapable of being witnesses at all: * * *
"But this indiscriminate rule of exclusion, since the progress in popular understanding of mental derangement and defect, has been modified and rationalized. While it is still attempted to draw a line which prevents certain classes of persons from being listened to at all — a doubtful policy in any case * * * — the law endeavors to make its tests fit the purpose. The question being whether the person is trustworthy as a witness, the law now asks whether in each case the derangement or defect is such as to make the person highly untrustworthy as a witness; it no longer excludes absolutely: * * *
"This broad and rational principle — that the derangement or defect, in order to disqualify, must be such as substantially negatives trustworthiness upon the specific subject of the testimony — is now practically everywhere accepted."
Under the trend of modern decisions the fact that the witness is insane does not necessarily exclude him from the witness stand. With the development of science in the treatment of insanity, courts have come to recognize that a person may be insane and at the same time competent to be a witness. For illustration, it is a generally accepted doctrine that a female may lack the mental capacity to consent to a rape and yet have mental capacity to testify. 2 Wigmore on Evidence (3 Ed.), 591, Section 498; annotation, 148 A. L. R., 1153, V.
Ordinarily the presumption is that persons who are called as witnesses are competent (2 Wigmore on Evidence [3 Ed.], 588, Section 497), but this presumption may be overcome by a proper showing. According to the general rule, the question of competency lies in the sound discretion of the trial judge and, if he permits a witness of unsound mind to testify, his action in so doing is not a ground of reversal at the behest of an aggrieved party, unless there is an abuse of discretion. Holler, Gdn., v. W. S. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P.2d 846, 148 A. L. R., 1131, and annotation at page 1140, III. In State v. Leonard, 60 S.D. 144, 244 N.W. 88, the rule is stated thus:
"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 the later decisions seems to be more liberal than the earlier cases and to leave the matter to a considerable extent to the discretion of the trial judge."
The governing principle may be stated briefly but substantially in the following way:
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. Annotation, 148 A. L. R., 1140. There is authority for the holding that where competency depends upon the existence of any fact which is in dispute the matter of competency of the witness to testify may become a question for the jury. Goodson v. State, 162 Ga. 178, 132 S.E. 899. The authorities generally take the position that where the court in the exercise of its discretion permits the challenged witness to testify, no issue is presented for the jury with respect to competency. The jury, however, in passing upon the credibility of such a witness, may cast aside his testimony as unworthy of belief. In 2 Wigmore on Evidence (3 Ed.), 590, Section 497 (c), appears the following text, which is supported by many authorities cited in the notes:
"The preliminary determination of capacity is for the judge, not the jury * * *; and it is therefore an improper practice for the judge to leave the testimony provisionally to the jury, to be rejected by them if found ineligible according to legal standard; the jury have nothing to do with preliminary questions of admissibility. But, after the court has passed on the witness' capacity, it is still open to the jury to conclude that the witness is not credible and to reject the testimony entirely; and the court's decision does not necessarily affect the estimate which the jury must make."
In State v. Scanlan, 58 Mo., 204, 205, the Supreme Court, in speaking of the finding of the trial court concerning a witness' competency, used this language:
"No hardship necessarily results; for, if the judge should chance to err in his conclusion, the jury hold a powerful corrective in their right to pass upon the credibility of the witness, as tested on the stand by the usual appliances."
With respect to the competency of Ruth Hunt, there is important medical testimony given by the physician called by the state. He testified:
"She was able to give a rather good account of what happened to her this fall. But that is not unusual for a person of this mentality. They are able to correlate the facts of one certain event or two events that occurred to them that have maybe shocked their mental system. In other words, she is mentally retarded and is not normal mentally. And under a general classification she can be classed as not sane, so she must be classed as insane."
When the doctor's statement is considered in connection with the testimony of Ruth Hunt herself, it is apparent that she showed the ability to understand, recollect and communicate what she saw and heard. With respect to Hazel Hunt, her narration of what transpired considered by itself would indicate that she had like capacity. A great deal is made, however, of the latter's contradictory statements as to whether Ruth Hunt was dressed when she came down stairs. These occurred at the close of her testimony which covered approximately 31 pages of typewritten matter in the bill of exceptions. These contradictory statements which might seriously affect her credibility are by no means conclusive of want of competency. One of her mentality could well become confused after a long and gruelling cross-examination by an able advocate.
Ruth Hunt testified that swearing to tell the truth meant help to God, and Hazel testified that swearing to tell the truth meant helping God. It is true there were some statements by them indicating either that their understanding of the nature of an oath was not of the best or that they could not express their thoughts very well. However, the trial judge saw these witnesses and heard them testify; and there was evidence from which he could infer that they regarded telling the truth on the witness stand as serving Providence and doing right, and that they had sufficient understanding of the nature and obligation of an oath to warrant their testifying.
This court is not justified in finding that the trial judge abused his discretion. On the whole the defendant had a fair trial, and the record discloses no ground upon which this court may lawfully base a judgment of reversal.
For the reasons given, the judgment of the Court of Appeals is hereby affirmed.
WEYGANDT, C.J., ZIMMERMAN, TURNER and MATTHIAS, JJ., concur.
BELL, J., concurs in the syllabus but dissents from the judgment.