Rivara v. Ghio, 3 E. D. Smith, 264. RIVARA v. GHIO. At New York Common Pleas, 1854. [Reported in 3 E. D. Smith, 264.] After a witness has been examined, even without objection, the adverse party has a right to give evidence by another witness that the former is of impaired mental capacity, such as to affect credibility. Plaintiff sued for injuries to personal property. After plaintiff's principal witness, Teresa, had testified to the contents of the trunk, without objection, the defendant at a later stage of the trial offered the testimony mentioned in the opinion of the court. The City District Court excluded the offer, and from judgment for plaintiff defendant appealed. WOODRUFF, J., [(DANIEL P. INGRAHAM, First Judge, and CHAS. P. DALY, LEWIS B. WOODRUFF and JOHN R. BRADY, JJ.,) after indicating opinion for plaintiff on the merits]: But we think that the court below erred in rejecting the evidence of John Ginnochio, who was called to prove that the plaintiff's principal witness had been of imbecile mind and memory. Such evidence would tend to prove that less reliance should be placed upon her statements than those of a witness who was compos mentis. That a person who is non compos, either through derangement or through want of ordinary understanding, is incompetent, is well settled. (10 J. R., 362; 26 Wend., 255; 1 Green. Ev., 464; 17 Mass., 540; 10 Serg. and R., 282, 285.) And when this objection is not taken upon the calling of a witness and, therefore, may perhaps be deemed waived as an objection to the competency of the witness, it may be given in evidence as going to the degree of credit to which the testimony of the witness is entitled, after the plaintiff has rested. It is true that the defendant's counsel states his object to be to prove that the witness had been of imbecile mind and memory. If this were to be taken as a mere offer to prove that at some former period the witness had been thus afflicted, and without Rivara v. Ghio, 3 E. D. Smith, 264. any inference that that state of things continued to the time of the transaction in question, or to the time of the trial it was immaterial and irrelevant. But proof of imbecility of mind would raise a presumption that such condition continued and might justly detract from, if it did not altogether destroy, the weight to be given to the evidence of the witness. The evidence of a lunatic, given in a lucid interval, might be received, and on proof of lunacy it would lie with the party offering the witness to prove that the lunacy had ceased or intermitted, and this would be a matter still going to the credit of the witness. Indeed, the reason of the rejection given below appears to have proceeded from the idea that evidence of this description necessarily went to competency only. In this we think the court erred, and the judgment must on this ground be reversed. Judgment reversed. State v. De Wolf, 8 Conn., 92. STATE v. DE WOLF. Connecticut Supreme Court of Errors, 1830. [Reported in 8 Conn., 92.] A deaf mute, capable of relating facts correctly by signs, may testify in that way, through the medium of an interpreter, though also capable of reading and writing, and of communicating ideas imperfectly by writing. A second witness testified that the deaf mute had once communicated to her in writing the substance of what the deaf mute had just testified to, but the present witness did not know where the writing was. Held, that the proof of loss was not sufficient to dispense with the production of the writing and, therefore, the testimony of this second witness to its contents was not competent. Indictment for an attempt to commit a rape. On the trial, Celestia Bull, a person deaf and dumb from her infancy, was sworn as a witness and testified to the principal facts in the case, by signs, which were interpreted to the court and jury by William W. Turner, a teacher in the American Asylum for the education of the deaf and dumb, who was duly sworn for that purpose, and was also sworn as a witness. Mr. Turner testified that Celestia had resided in the asylum about five years, and was well acquainted with the language of signs, and capable of relating facts correctly in that manner; that she could also read and write, and communicate her ideas imperfectly by writing. The defendant's objection to her testifying in this manner claiming that she ought to give testimony in her own words in writing, was overruled. Before the defendant had attempted, otherwise than by cross-examination, to discredit Celestia's testimony, the state offered Polly Rowley as a witness to prove that Celestia had previously communicated to her the same story that she had testified to in court. This evidence was admitted against defendant's objection. It appearing that such communication was in writing, the defendant again objected on the ground that the writing itself should be produced or proved to be lost, but was overruled. The defendant, having been found guilty, moved for a new State v. De Wolf, 8 Conn., 92. trial on the ground of the judge's decisions as to admission of evidence stated above. The Supreme Court of Errors granted a new trial. 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 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. [Here followed a consideration of the admission of Polly Rowley's testimony, confirming the testimony of Celestia before she had been impeached, it being held to have been properly admitted in this case.] 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 State v. De Wolf, 8 Conn., 92. This produced, and that she could not testify as to its contents. 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 secondary evidence. [After consideration of other rulings below not affecting the decision]: New trial granted. In State v. Weldon, S. C., 1893, 17 Southeast. Rep., 688, it was held that a deaf mute may be examined through sworn interpreters who, though not experts, testify that they had employed the witness and that they had no difficulty in communicating with him by signs. |