State v. De Wolf

| Conn. | Jun 15, 1830

Daggett, J.

Several objections were made at ¡the trial, against testimony offered by the public prosecutor, which appear on the motion, and are now urged as reasons for granting a new trial. They will be considered in the order presented by the counsel for the prisoner.

1. The supposed victim of the outrage of the prisoner, was deaf and dumb. She was sworn, and testified by a sworn interpreter, an instructor in the Asylum for the deaf and dumb, through certain signs adopted as a medium of communication, by that class of persons. It was objected, by the counsel for the prisoner, that as it appeared by the testimony of the interpreter, that “ she could read and write and communicate her ideas imperfectly by writing and it further appeared, that “ she understood the language of signs, and was capable of relating facts correctly, in that manner;” she ought to testify in her own words in writing. The judge very properly overruled the objection. The bare statement of the objection, overthrows it. She was capable of relating facts correctly, by signs; she could read and write, and communicate her ideas imperfectly, by writing. The objection, thus viewed, presents this absurdity, that the court erred in resorting to the most perfect mode of ascertaining the truth. The mode of examination adopted by the court, was the next best mode to an oral examination, which, for many obvious reasons, is preferable to an examination in writing, but which could not be had in this case, on account of an infirmity in the witness. I see no ground for this objection.

2. After the prisoner had cross-examined Celestia, and asked many questions relative to the principal fact charged in the indictment, about which she had testified, many of which tended to discredit her testimony, but before any attempt to discredit her, otherwise than by such cross-examination, the attorney for the state offered Polly Rowley to testify, that Celestia had communicated to her the same story which she now related; to which the prisoner objected; but the objection was overruled. I am aware, that whether testimony can be received confirmatory of what a witness has previously said, before an impeachment, either general or particular, is a question abou¿ which different opinions have been entertained. It is believed, that the decisions on the circuit do not perfectly harmonize on this subject, and it may be proper hereafter to settle it definitively; but as there is not a coincidence of opinion on this point, and as a majority of the Court concur in the opinion that the testimony was properly admitted, a discussion and decision of the general question, is waived. It was properly admitted in this case, because on an indictment for rape, or an attempt to commit a rape, such evidence is received to shew constancy in the declarations of the witness. If a female testifies, that such an outrage has been committed on her person, an en-quiry is, at once, suggested, why it was not communicated' to her female friends. To satisfy such inquiry, it is reasonable that she should be heard in her declarations, that she did so communicate it, and that testimony should be received to confirm her story. The time when these communications were made, is proper to be considered, by the triers: it bears on the question of fact.

3. The witness Polly Rowley then testified, that in the fall of 1829, Celestia communicated to her in writing the substance of what she had now testified, and that she did not then know where the writing was. Upon this disclosure of the writing, the prisoner made a further objection, that the writing should be produced, and that she could not testify as to its contents. This objection was overruled, and the testimony was admitted. I am of opinion, that upon this statement of the facts in relation to the writing, the judge should have rejected her testimony. If the paper containing that communication had been lost, the fact could have been proved, and then its production would have been dispensed with ; but her declaration was simply, that she did not know where it was. There was no proof that she had made search for it among her papers. Upon this evidence. it can hardly be said, that there was any proof of loss so as to let in the secondary evidence.

4. Witnesses were then offered, by the state’s attorney, to prove the general character of the witness, Celestia, for truth, to be good. Being objected to, on the ground, that no impeachment had been attempted, the proof was admitted. It would not be going too far, perhaps, to say, that the general character of the witness, who is the victim of the outrage, in prosecutions for rape, and attempts to commit a rape, may ah ways be shewn. Our books tell us, that if the witness, in these cases, be of good fame, it greatly strengthens her testimony; if of evil fame, it is thereby lessened. But, without deciding that point, let us look, for a moment, at the condition of this woman. By this condition she may fitly be said to be a stranger even in her own neighbourhood. Unable to hear or speak, she is excluded from society, and can be known only to a few of her relatives and companions in affliction. Had the outrage been sworn to, by a stranger, passing transiently through the state, it would certainly be proper for the attorney to prove the character of the witness. And I think, upon similar principles, it was proper to support the character of this witness.

5. During the trial, the prisoner attempted to discredit the testimony of Celestia, by proving, that she had giyen different accounts of the transaction on oath and in writing. And she having sworn, that she concealed the transaction more than a year, and assigned, as a reason therefor, the threats and influence of the prisoner and her tear of him, the attorney for the state offered to prove, by the interpreter, Turner, who was an instructor in the Asylum, that the deaf and dumb, generally, have a sense of inferiority to other people, and, as a class, are easily intimidated ; are credulous, sincere and submissive ; and that this was her character. On objection, this testimony was admitted. I am of opinion that this decision was erroneous. It is opening a door for enquiries in their nature interminable; and, after all, no satisfactory result can be obtained.

On the third and fifth grounds, I am in favour of granting a new trial.

The other Judges were of the same opinion, except that Teteus, J. was inclined to think, in relation to the last point, that the evidence was properly received.

New trial to be granted.