88 Wis. 180 | Wis. | 1894
It seems to be the settled law that, after four years of age, a child is not incompetent to testify as a witness by reason of any rule of law which excludes him. Whether a child above that age is competent to testify depends upon his intelligence, which is to be determined by the trial court by examination of the child in court. The question is addressed to the discretion of the trial court. Its determination on such examination is final, except in a clear case of the abuse of its discretion. “ It may be regarded as well settled that whenever there is intelligence enough to observe and to narrate, there a child (a due sense of the obligation of an oath being shown) can be admitted to testify.” 1 Whart. Ev. (3d ed.), § 398. “ Age, at least after four years are past, does not touch competency; and the question is one of intelligence, which, whenever a doubt arises, the court will determine to its own satisfaction by examining the infant on his knowledge of the obligation of an oath and the religious and secular penalties for perjury.” Id. § 399. “ It will require a strong case to sustain a reversal of the ruling of the court examining such a witness.” Id. § 400. See cases cited in the brief of the attorney general; also, State v. Morea, 2 Ala. 275; Wade v. State, 50 Ala. 164; Blackwell v. State, 11 Ind. 196; State v. Denis, 19 La. Ann. 119; People v. Bernal, 10 Cal. 66; State v. Whittier, 21 Me. 341; State v. Le Blanc, 3 Brev. (S. C.), 339; State v. Jackson, 9 Oreg. 457. Whether the trial court determined rightly the questions of the competency of the witness is not presented here. That is a question of fact.
2. Ordinarily, the testimony of one competent witness is sufficient to sustain a conviction. There are crimes for which it is not competent to convict upon the' uncorroborated testimony of one witness. These are exceptions from the general rule, created either by statute or some established rule of the common law. Except in these excepted cases the testimony of one witness answers at law. Even the testimony of an accomplice is sufficient (Black v. State, 59 Wis. 471), and that even in a capital case (U. S. v. Neverson, 1 Mackey, 152; U. S. v. Bicksler, id. 341). The weight of the evidence is for the jury. If they are satisfied by it beyond a reasonable doubt, it is legally sufficient. Even in cases of rape, there is no inflexible rule which requires corroboration of the complainant’s testimony. Such corroboration is expected, and its absence seriously impairs the case of the prosecution. Rut the law itself is satisfied with such corroboration as is practically procurable; else, many crimes could be perpetrated with impunity. 1 Whart. Cr. Law (9th ed.), sec. 565. It is, to a great extent, in the discretion of the trial court, in most cases, whether corroboration shall be required, and how much. Ingalls v. State, 48 Wis. 649; Black v. State, 59 Wis. 471. Under the direction- of the court, an intelligent jury are not likely to err in giving undue credit and force to the testimony. If that should happen, it is always within the power of the court to correct such a mistake by a new trial. It appears by the report that there was some corroboration of the principal witness. Whether the whole evidence supports the conviction cannot be answered here. State v. Gross, 62 Wis. 41. The court being satisfied by its
3. The act alleged against the defendant is an act of “open and gross lewdness,” within the meaning of the statute. The statute punishes not public, but open, lewdness. The phrase “ open and gross lewdness ” is not equivalent to the phrase “gross lewdness in an open place.” The word “ open ” has no reference to place at all, nor to number of people. It is used simply to define a quality of the act of lewdness. ■ It is “open lewdness” as opposed to “secret” lewdness. It defines the same act, regardless whether it is committed in presence of one or of many. The offense may be committed by the intentional act of exposing one’s person indecently ■ in the presence of one person, to whom it is offensive, as well as in the presence of many persons. It could not change the quality of the act that it was committed in the presence of a child of tender years, too innocent to be offended by it. The benignity of the law would neither presume nor permit the consent of such a child to such an act. Fowler v. State, 5 Day, 81; Grisham v. State, 2 Yerg. 589; State v. Millard, 18 Vt. 574; Comm. v. Wardell, 128 Mass. 52.
By the Court.— The first question is answered in the negative. The second and third questions are answered in the affirmative. It will be so certified to the circuit court.