Ray v. State , 32 Ga. App. 513 ( 1924 )

Bloodworth, J.

The motion for a new trial shows that the court was asked to exclude from the jury the evidence of Shug Collins, the chief witness for the State, because “it is shown that she was not a competent witness,” and “it developed from her examination that she was so feeble-minded that she did not know the nature of an oath.” The witness was at least 21 years old, had lived in the county since she was six years old, but, when asked the name of the county, replied, “Mama knows.” She said that she did not know the name of the State in which she lived; that she had never been to school, and did not know what she was doing in court; and when asked, “You don’t know what an oath means?” answered, “No;” and in answer to the question, “Do you know what the law means to swear a person?” again answered, “No.” Her mother testified that she was weak-minded; that she had never learned her A B C’s; that she had never learned to count, and could not count more than 3 or 4; and that her mental condition was such that she could not be held responsible for her conduct.

Section 1038 of the Penal Code of 1910 is as follows: “Persons who have not the use of reason, as idiots, lunatics during lunacy, and children who do not understand the nature of an oath, are incompetent witnesses.” "In section 2 of the Penal Code we find that “Lunatic, insane, or non compos mentis, each includes all persons of unsound mind.” According to Black’s Law Dictionary, a person of unsouncl mind is “an adult who from infirmity of mind is incapable of managing himself or his affairs. The term therefore includes insane persons, idiots, and imbeciles.” In Cuesta v. Goldsmith, 1 Ga. App. 48, 53 (57 S. E. 983), this court quoted with approval the following from an opinion of Judge Lurton in the case of Pittsburg & W. Ry. Co. v. Thompson (C. C. A.), 82 Fed. 726: “The general statement that at the common law a person non compos mentis is incompetent to testify is doubtless true. Hartford v. Palmer, 16 Johns. 153; Cannady v. Lynch, 27 Minn. 435, 8 N. W. 164. In the case of Reg. v. Hill, 5 Cox. Cr. Cas. 259, the proper meaning of this general statement of the rule was under consideration, and the Chief Justice said: ‘Various authorities have been referred to which lay down the law that a person non compos mentis is not an admissible witness. But in what sense is the expression non compos mentis employed ? If a person be so to such an extent as not to understand the nature of an oath, he is not admissible. But a person subject to a considerable amount of insane delusion may yet be under the sanction of an oath, and capable of giving very material evidence upon the subject matter under consideration. The proper test must always be, does the lunatic understand what he is saying, and does he understand the obligation of an oath?’ . . In the case of District of Columbia v. Armes, cited above, the Supreme Court, referring to Reg. v. Hill, said: ‘The doctrine of this decision has never been overruled that we are aware of,’ and added: ‘The general rule, therefore, is that a lunatic or a person affected with insanity is admissible as a witness if he have sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct account of the matters he has seen or heard in reference to the questions at issue.’ ’’ The examination of the chief witness in this case did not show that she, “either from a moral or legal standpoint, understood the nature or obligation of an oath, or had the slightest degree of knowledge with reference to the legal consequences of committing perjury.” Gaines v. State, 99 Ga. 704 (26 S. E. 760).

In the light of the evidence quoted above and other evidence shown in the record, we are convinced that the witness Shug Collins has not sufficient mental capacity to understand the nature of an oath; that she has not the “use of reason;” and, under the law stated above, her evidence should have been excluded. Without her evidence there is nothing to support the verdict, and the judgment is

Reversed.

Lulce, J., concurs. Broyles, G. J., dissents.