229 Wis. 127 | Wis. | 1938
Defendant was charged by the complaint of Emil Bornick with having ravished the daughter of Bor-nick, a female over sixteen years of age, by force and against her will. On June 15, 1938, a preliminary examination was held before the county judge of Marquette county. Upon prosecutrix being sworn, counsel for defendant objected to her competency upon the grounds that she was of such limited intelligence and suffering from such insane delusions and hallucinations as to be incompetent as a witness. The objection was overruled, the court stating that it would be in better position to' determine that question after the hearing. The court was then requested by defendant to conduct an examination to ascertain the competency of the witness and acceded to the request to the extent of asking
It is clear that without the testimony of prosecutrix, there was not sufficient evidence upon which to hold defendant for
Prosecutrix testified that she was four years of age, when in fact she was twenty-four; that she could write but not read; that she went to “our church” but did not know its name; that it was right to tell a lie but not wrong to tell the truth. She stated that she knew what an oath was, but when asked to tell ’what it was gave no answer. She had never heard of the Bible. When asked whether her minister had told her the difference between right and wrong she said yes, and when asked what he taught her, she recited the names of some German songs. She told her story of the offense mostly by yes and no answers to leading questions. She was asked if anything happened in the car, and she gave no an'swer. She was asked whether she was in the defendant’s car, and answered yes. She was asked who- was there with her and answered, “Nobody.” The question was repeated as to what happened in the car and she made no answer. She was asked where she went in defendant’s car, and she answered, “Until noon.” Again asked what she did in the car, she said nothing. Asked what defendant did to her, if anything, she did not answer. Again asked whether the defendant did anything to her in the car, she said, “Yes.” To the question, “What did he do?” some answer in German was made which the interpreter could not understand. She .was then asked if the man touched her, took her clothes off, took her bloomers off, and put them back on, and an
It is well established that one who is charged with crime may be held for trial only when the evidence establishing substantial grounds for such action is competent. State ex rel. Durner v. Huegin, 110 Wis. 189, 85 N. W. 1046; Melli v. State, 220 Wis. 419, 265 N. W. 79. It follows that when the action of the magistrate in holding a defendant for trial rests solely upon the testimony of an incompetent witness, he acts without jurisdiction, and'the defendant is entitled to be released upon habeas corpus. State ex rel. Durner v. Hue-gin, supra. The test for competency, as far as is material here, has to do with the witness’ capacity for communication and is thus stated by Mr. Wigmore in 1 Wigmore, Evidence, p. 915, § 495 :
“It has two aspects:
“(1) First, it involves a capacity mentally to understand the nature of question put and to form and communicate intelligent answers. (2) Secondly, does it involve a sense*132 of moral responsibility, of the duty to make the narration correspond to the recollection and knowledge, i. e., to' speak the truth as he sees it ? It would seem that the clear absence of such a sense would disqualify the witness. . . .”
Applying this test to the mentality of the prosecutrix, as disclosed by the examination, it is our conclusion that,the prosecutrix showed a complete inability to understand questions put and to form and communicate intelligent answers. The facts of the transaction were simple and uncomplicated, and her inability to recount them without having the words put into her mouth by the examiner, as well as her inability even to give a consistent series of affirmative and negative answers to leading questions, satisfies us that she wholly fails to meet this test of testimonial competency. Her testimony as to the nature of an oath and the distinction between right and wrong, especially with reference to telling the truth, is of such a character as to convince us that she did not have a sense of moral responsibility or an appreciation of the importance of an oath or the obligation to testify truthfully. The conclusion is fortified by the testimony of prosecutrix’s mother to the effect that prosecutrix is feeble-minded, requires the assistance of the mother in dressing and in eating, and that the mother is unable consistently to carry on a conversation with the prosecutrix in which she understands the prosecutrix and the latter understands her. ■It is our conclusion that prosecutrix was wholly incompetent as a witness, and since there was no other evidence warranting the holding of defendant for trial if the evidence of prosecutrix were stricken, it follows that the trial court was in error in refusing the writ.
By the Court. — Order reversed, and cause remanded with directions to enter an order discharging plaintiff in error from custody.