1 Denio 19 | Court for the Trial of Impeachments and Correction of Errors | 1845
The trial of this case seems to have proceeded upon the ground that the female upon whom the defendant was charged to have committed the offence, was incompetent to be sworn as a witness, by reason of defect of in
It is insisted on the part of the people, that when persons are excluded from being witnesses for want of understanding, whether it arises from immaturity or defect of intellect, evidence may be given of their declarations as to the offence charged.
It is said, (1 Chit. Cr. Law, Riley’s ed. 481, 1 Leach, 110, 199,) “ It was once thought that when the party immediately injured was an infant of tender years, the parents of the child might be admitted to state the account he had given of the transaction immediately after it had taken place, and that the infant might be examined though not sworn ; (and so is the authority of 2 Hale, 278, 9, Bull. N. P. 293 ;) but both these ideas are now rejected, and it is fully established that if the infant is of competent discretion, he may he sworn, however young; and if not, no evidence whatever can be given respecting his assertions.”
That being the true rule in case of a person immature in in
The evidence of Trisket proceeded upon the idea that the female was of sense, sufficient to have intelligence conveyed to her, and to communicate intelligence to the witness, by signs and motions. . Trisket testified that she was not a fool. She could not talk, hut could make signs and had understanding enough to take care of herself, to communicate her wants, and to render much service at the poor bouse, of which she was an inmate. "She observed things that occurred about her, frequently informed witness of them by signs, and that he was able to comprehend her signs, and had no difficulty in carrying on ordinary conversation with her, &c. I see no reason, from the account given of her by this witness, why she was not competent as a witness to give evidence, through the medium of this witness as an interpreter, by signs. What more reason would it require to give evidence under oath, than to give facts without being sworn ? The only question in the admission of her as a witness was, had she sufficient reason ? If she had sufficient reason to have intelligence conveyed to her by the witness, and to communicate facts to the understanding of the witness, although she was not able to talk or write, she could have been sworn and testified through him by signs.
In John Ruston's case, (1 Leach, 455,) “ A man deaf and dumb from his birth was offered as a witness on the part of the public on an information for grand larceny. Martha Ruston, his sister, being examined on the voir dire, it appeared that she and
It should, however, be understood, that I do not place my opinion as to the admissibility of the evidence objected to, upon the question whether the female witness was competent to testify, or not. In either case, I consider the evidence inadmissible upon principle. The view I have taken of it, I think is sustained by recent cases in the English courts; (Reg. v. Gutridge, 9 Carr. & Payne, 471; Reg. v. Megson, id. 428;) and I do not doubt that the true rule is, that when the person upon whom the offence is charged to have been committed is incompetent, by reason of infancy, idiocy, insanity and the like, to be sworn and give evidence as a witness, that no evidence of the assertions or declarations of such person, descriptive of the offence or the offender, can be received in evidénce; and that the declarations of the person upon whom the injury has been inflicted in relation to it are only proper to be given in evidence to affect the credibility of the person, after having testified in the cause. I think the objection was well taken.
The judgment of the court of oyer and terminer must be reversed.