§ 7. Children: Age as affecting Competency. § 8. The Requisite Religious Instruction. § 9. Competency of Witness as dependent upon Means of Knowledge. § 10. Effect of Imperfect Recollection. § 1. Preliminary Observations. A witness is a means or instrument of evidence, i.e. of unwritten or oral evidence; his function is to inform the tribunal or officer before whom he testifies as to matters of fact. Obviously, in order to the proper exercise of this important function, the proposed witness must possess certain qualifications, or, to speak more accurately, he must not labor under certain disqualifications, to be presently considered, or he will be rejected by the court or magistrate as an incompetent witness, and his testimony excluded. The chief reason for the exclusion of the testimony of such a witness is, that it would, if admitted, tend to mislead the jury; and it is clear that the propriety of the exclusion in each particular case must largely depend upon the constitution of the tribunal to which the evidence is submitted, and the mode of proceeding before it. Then, too, the difference which exists between judicial investigations and the ordinary transactions of life, must be con sidered more especially with regard to the space of time allowed for decision, the temptations to deceive, the facilities of deception, and the consequences of deciding incorrectly.1 At common law the disqualifications which rendered a witness incompetent to give any evidence at all were: (1) Insufficient understanding; (2) Refusal to be sworn or to acknowledge the sanction of an oath; (3) Infamy arising from conviction of crime; (4) The position of the proposed witness as a party to the controversy under investigation; and (5) His being interested in the event of the matter in issue to any extent, no matter how trifling.2 Let us now examine these common law disqualifications in the order above given, noting as we proceed the statutory changes which both in England and America have entirely swept away some of them, and greatly circumscribed the former almost universal applicability of those of them which still may be said to have the force of rules of law. § 2. Insufficient Understanding. The disqualification first mentioned in the preceding section is that of mental deficiency. This defect, whatever may have been its cause; whether it be temporary or permanent, curable or incurable; whether it be due to the tender years of the witness, or to some disease, intemperate habits, loss of memory, or any other cause, is absolutely fatal to the competency of the witness so long as it exists: on its removal, however, the witness' competency is restored. Persons laboring under this kind of disqualification are, Idiots, Insane persons, Intoxicated persons, Deaf-mutes, and children. Each of these classes will be considered in turn. § 3. Idiots. An idiot is defined to be one who from his nativity is by a perpetual infirmity non compos mentis.3 His infirmity is incurable, and he can under no circumstances. become a competent witness. In his case, as in that of an insane person, the great safeguard provided by the law in 11 Phill. Ev. (4 Am. ed.) 7; 1 Greenl. Ev. § 326. 2 Some writers name a sixth class, in which they include grand and petit jurors, whose incompetency to testify as to matters upon which they have deliberated in the secrecy of the jury room, is grounded upon principles of public policy, and is, in the present writer's opinion, rather an inhibition upon the disclosure of certain facts than a disqualification of the witness to testify at all. 3 Co. Litt. 247, a. order to secure the truth of oral evidence, viz. that it be delivered under the sanction of an oath, is wanting; for not being capable of comprehending either the nature and obligation of an oath, or the temporal or spiritual consequences. of its violation, its administration to him would be an idle. ceremony.1 Lord Hale classes persons born deaf and dumb as idiots; 2 but such a position would hardly be accepted at this day, although later authorities in England maintain that one who is born deaf, dumb, and blind, must be regarded as in the same state as an idiot, being supposed incapable of any understanding, as wanting all those senses which furnish the human mind with ideas. However this may be, the fact that the proposed witness is an idiot must be proved by other testimony, and not by a preliminary examination of the witness; and even if the court have any discretion by which they may permit such preliminary examination, still it is not error for them to refuse to allow it.1 5 § 4. Insane Persons. A madman, or person permanently deranged, is as fully disqualified as an idiot, and for the same reason; and proof of incompetency for such cause is admissible. But if the witness, though insane, be capable of understanding the obligation of the oath and of giving a correct account of things seen or heard in connection with the issue, he is competent. Thus a lunatic is competent during a lucid interval.8 The question is whether the witness is insane at the time he is offered as a witness, and this question is a preliminary one to be decided by the court.9 A respectable text-writer observes that the witness, to be competent, must have been in possession of his intellect at the time of the event to which he testifies, as well as at the 1 See Gebhard v. Shindle, 15 S. & R. (Pa.) 235; Phebe v. Prince, Walk. Rep. 131; Kilburn v. Mullen, 22 Iowa, 498; Fuller v. Fuller, 17 Cal. 605; Coleman v. Commonwealth, 25 Gratt. (Va.) 865. 21 Hale, P. C. 34. 31 Bl. Com. 304; 2 Steph. Com. 530. See infra, § 6; Reg. v. Guttridge, 9 Carr. & P. 471; Reg. r. Megson, Id. 428. 4 Robinson v. 5 Com. Dig. tit. Testmoigne, A. 1; Livingston v. Kiersted, 10 Johns. (N. Y.) 362. 6 Livingston v. Kiersted, supra. 7 District of Columbia v. Armes, 107 U.S. 519. S. P. Coleman ». Commonwealth, 25 Gratt. (Va.) 865. 8 Evans v. Hettich, 7 Wheat. (U. S.) 453, 470; Campbell v. State, 23 Ala. 44. 9 Rex v. Hill, 20 Law J. 222, m; Holcomb v. Holcomb, 28 Conn. 177; Cannady v. Lynch, 27 Minn. 435. time of his examination; and that it ought to appear that no serious fit of insanity has intervened, so as to cloud his recollection, and cause him to mistake the illusions of imagination for the events he has witnessed.1 But the Supreme Court of Connecticut has held that the question whether a witness, sane at the time he testifies, was insane at the time of the transaction with regard to which he testifies, goes only to the credibility of his testimony and not to his com-petency, and is therefore a subject for evidence to the jury, to be adduced by the opposing party with his other evidence; and to be proved in the same manner as insanity in any other case.2 And other respectable decisions hold that one who has been adjudged restored to sanity may testify as to facts that occurred while he was under guardianship as insane.3 The burden of proof as to restoration to sanity rests upon the party offering the witness. Thus an inquisition of lunacy found against one is prima facie evidence of his incompetency, and unless it be overcome by evidence of his sanity, he should not be permitted to testify, even as against one not a party to the proceedings in lunacy. But the fact of insanity must, in the first instance, be proved by the party objecting to the witness.5 As respects the competency of persons afflicted with monomania, i.e. unsoundness of mind upon one particular subject (not a part of the matter in issue), Mr. Roscoe advises the exclusion of their testimony, and the Privy Council of England have said that if the mind is unsound on one subject, and this unsoundness at all times exists upon that subject, the mind of such a person cannot properly be considered really sound upon other subjects.7 $5. Intoxicated Persons. Much of what has been already said applies to this class of incompetent witnesses, with the single qualification that while in the case of idiocy, or 1 Allison (Scotch), Pr. 436. Holcomb v. Holcomb, supra. & Sarbach . Jones, 20 Kan. 497. Compare Endel v. Walls, 16 Fla. 786. + Hoyt v. Adee, 3 Lans. (N. Y.) 173. S. P. Armstrong v. Timmons, 3 Harr. (Del.) 342. 45. 6 Rosc. Cr. Ev. p. 128. Mr. Best, however, calls this "hard measure." Best, Princ. Ev. p. 168. 7 Waring . Waring, 12 Jur. 947, a case where a will was set aside on the ground of mental incapacity in the testator caused by monomania. In State v. Holloway, 8 Blackf. (Ind.) another case (a trial for manslaughter), the witness' delusion, both at the |