CHAPTER XXIII.

EFFECT OF INSANITY ON EVIDENCE.

§ 418. THE insane are disqualified by law1 from appearing as witnesses in courts of justice, their incompetence being inferred from their mental unsoundness. The fact of incompetence to testify, however, is not necessarily connected with that of insanity, and it would be far more correct to consider the former an independent fact to be established by a distinct order of proofs. The truth is, an analogy, in a medico-legal sense, has been too hastily assumed, between the act of testifying, and that of performing business contracts or other civil acts, and, in consequence, it has shared with them in the same sentence of disqualification, without an attempt to ascertain the kind and degree of intellectual power which they respectively require. The practice of including them in the same category, is certainly not favored by the present state of our knowledge of insanity, nor does it approve itself to the common sense of mankind. To see what foundation in nature this rule of law really has, we' shall proceed to inquire how far the competency of a witness is actually impaired by the different forms of insanity.

§ 419. According to Hoffbauer, before a witness can be deemed competent, it is necessary that his senses should be sufficiently sound to take cognizance of the facts to which he testifies; that their impressions should have been really what he believes they were; that his testimony should coincide with his belief; and lastly, that he should be able to convey to others his own ideas, without fear of being misinterpreted.

1 Thomas's Coke's Littleton, 489; Livingston v. Keirsted, 10 Johnson's Reports, 362.

These conditions, it may be added, constitute the capacity of a witness, and wherever they are present, his evidence should be received, without agitating the question of his mental unsoundness which is not absolutely incompatible with their existence.1

§ 420. The higher degrees of imbecility must of course disqualify a witness, but its less aggravated forms may not, under all circumstances, have this effect. His senses may be acute enough to see and to hear what he deposes to; no illusions may obtrude and mingle with their impressions; and his memory may be retentive enough, provided too long a space of time do not intervene between the occurrence of the facts and his deposition concerning them, to bear them in mind till revealed by judicial investigation. The facts to which he testifies must be of the simplest kind, requiring the smallest perceptive effort to seize and appreciate, and so intelligible to the meanest understanding, that the memory can easily retain them. If the details are too numerous and complicated, and especially if they include words or actions not familiar with or analogous to his own ordinary experience; or if they happened at too remote a period, they become confused and entangled in his mind, and many of them fade from it altogether, while some important members of the series may not have been attended to at all. Hence, the evidence of imbeciles may present many a contradiction and hiatus of which they may be perfectly unconscious themselves, and which it would be wrong to attribute to intentional omissions, or a wish to deceive. If we bear in mind, too, that these persons are easily embarrassed, it might naturally be expected that the presence of spectators, the perplexing questions of counsel, and the formalities of a trial, would so disorder their ideas, as to make their testi

1 The third condition above-mentioned, may not at first sight appear to be connected with capacity; but if the reader will refer to the observations (§ 165) on a class of people, who, in consequence of some natural defect or organic disease, are incapable of telling the truth, even when most conducive to their own interests, he will be convinced of the propriety of placing it in this connection.

mony appear to those unacquainted with their mental deficiency, like the most impudent trifling or downright mendacity. The more, however, the witness is permitted to tell his story in his own way, and finds encouragement in the looks of those around him, the less of this will be observed. The class described in (§ 62,) are competent to testify in matters of a more complicated kind, requiring a larger grasp of the reflective faculties to embrace, and more tenacity of memory to retain them, but, like the others, they are very liable to be disconcerted by the questions of strangers, and, in consequence, betrayed into numerous contradictions of their own testimony. Since, then, the competency of these imbeciles is well established, nothing can be clearer than the propriety of admitting their evidence, and leaving it for the jury to decide upon its credibility.

§ 421. In partial intellectual mania the capacity of testifying under certain circumstances and with certain reservations, is still preserved, though considerable knowledge of the case, and extreme caution are requisite to measure the witness's credibility. In regard to the greater proportion of cases, the only doubt is respecting the second and third conditions of capacity (§ 419,) no question being raised as to the presence of the others; that is, whether the witness has really seen, heard, etc., what he believes he saw and heard, and whether his testimony coincides with his belief. That he may offer in evidence the offspring of a disordered imagination, sincerely believing it to have come under the cognizance of his own senses, is undoubtedly true; but no less so, however, that he may testify only to what has come under his own observation. Which of these events does actually take place, is a question to be settled by reference to the nature of the evidence and the character of the witness's insanity. When the matter on which he testifies, is remote from the insane delusion which he entertains, and cannot very obviously come within the circle of its influence, it would be wrong to reject his testimony on the score of incompetency. When we see these monomaniacs rational on every topic but that which constitutes their derangement, shrewd and me

thodical in the transaction of business, quick to perceive and able to profit by whatever appears conducive to their interests, trusted and respected by their neighbors, it seems more difficult to disprove than to prove their competency. The power of remembering and telling correctly what they have seen or heard, requires no more strength or soundness of mind, than numberless other duties that nobody doubts their ability to perform. Even on topics connected with their insane belief, their capacity is not necessarily destroyed, and in doubtful cases it would seem better to receive their evidence, and leave it for the court or counsel to disprove its credibility. At the very least, the burden of proof should lie on the party that allege the incompetence. Even while the predominant idea is highly false and absurd, they may, and very often do, reason upon it with force and correctness, their deductions being sound and their reflections appropriate. Indeed, this mixture of the rational and the irrational, this inability to discern the relations of congruity between the true and the false, constitutes one of the most characteristic features of madness. Hence, it would not be unnatural for them to see things in some way connected with the delusion, in most of their relations, in their true light; and of this fact we should certainly avail ourselves in deciding on the admission of their evidence. The man who believes that he is charged by government with the regulation of the weather, may, notwithstanding, observe meteorological changes, and testify accurately concerning the state of the weather at a particular time-perhaps no one more so; and he who believes that he has made an immense fortune by a commercial speculation, may talk sensibly on mercantile interests and be perfect master of the price-current, and thus be competent to testify on any matter connected with the same, that has come under his observation. The credibility of such witnesses, however, depends very much on the importance of the subject on which they testify, and on the relations of their evidence to that of other witnesses. When they corroborate the statements of other witnesses, they may justly challenge our belief, while we. should very properly hesitate

to decide upon any great interests of person or property, solely upon the ground of their testimony.

§ 422. The reported cases where the competence of witnesses was destroyed by reason of insanity, are too few to render it very apparent how far the following represents the ordinary practice of American courts. It strikingly illustrates the effect of a rigid adherence to the common-law maxim, that the insane are incapable of testifying, and, therefore, may be properly introduced in this place. In May, 1833, Jacob Schwartz was tried, at a term of the supreme court for the county of Lincoln, in Maine, on an indictment for assaulting, with intent to kill, Jonathan Jones. Jones himself was the principal witness, and he stated that he went into Schwartz's house for the purpose of conversing on religious subjects with his wife who was also Jones's sister; that Schwartz who had often forbidden him to do so, followed him into the house, drove him out, seized his gun, and threatened to shoot him; that he then ran several rods, occasionally looking back at Schwartz who stood in his door-way presenting his gun, as if in the act of firing; that Schwartz finally fired and hit him, several shot lodging in his hat and coat, and a few penetrating into the skin of his back, from which they were taken out by some persons in a house to which he immediately ran. The transaction was witnessed by no one besides Jones. By other witnesses it was testified, that Jones ran into the house where they were, exclaiming that Schwartz had shot him, and that they assisted in taking the shot out of the skin. Thus far his testimony was rational and consistent, and his manner calm and composed. On being cross-examined by the defendant's counsel who had some knowledge of his case, he testified, that he used to work on a piece of land which he owned, but that feeling himself called to exhort sinners to repentance, he went about, in imitation of Christ and the apostles, preaching the gospel and exhorting sinners to forsake their evil ways. He declared himself to be an apostle, and inspired by the Holy Ghost; also, that he was one of the saints who are to judge the world, and that he should