DEAF AND DUMB. A person deaf and dumb is doli capax; but with such persons who have not been educated, and who can not communicate their ideas in writing, a difficulty sometimes arises on the trial.
A case occurred of a woman deaf and dumb who was charged with a crime. She was brought to the bar, and the indictment was then read to her ; and the question, in the usual form, was put, Guilty or not guilty? The counsel for the prisoner then rose, and stated that he could not allow his client to plead to the indictment until it was explain ed to her that she was at liberty to plead guilty or not guilty. This was attempted to be done, but was found impossible, and she was discharged from the bar simpliciter. Case of Jean Campbell, 1 Wh. & St. Med. Jur. § 468. When the party indicted is deaf and dumb, he may, if he understands the use of signs, be arraigned and the meaning of the clerk who addresses him conveyed to him by signs, and his signs in reply explained to the court, so as to justify his trial and the infliction of punishment; Corn. v. Hill, 14 Mass. 207 ; 1 Leach 102; 1 Chit. Cr. L. 417. See State v. Harris, 53 N. C. 136, 78 Am. Dec. 272. It was formerly said that persons deaf and dumb were presumably idiots; 1 Hale, P. C. 34; but that doctrine was formn lated at a period when the subject of the education of such unfortunate persons had received little or no attention. One deaf and dumb is not consequently insane, nor is he presumed to be an idiot ; Alexier v. Matz ke, 151 Mich. 36, 115 N. W. 251, 123 Am. St. Rep. 255, 14 Ann. Cas. 52; and his capacity appearing, he may be tried; 1 Bish. Cr. L 395; the ordinary presumption of sound mind and criminal responsibility, as was said by Gilpin, C. J., in a case of homicide by a person so afflicted, "does not apply to a deaf and dumb person when charged with the commission of a crime. On the contrary, the legal presumption is then directly reversed; for in such case it is incumbent upon the prosecution to prove to the satisfaction of the jury that the accused had capacity and reason sufficient to enable him to distinguisb between right and wrong as to the act at the time when it was committed by him, and had a knowledge aad consciousness that the act he was doing was wrong and crim inal and would subject him to punishment ; 1 Houst. Cr. Rep. 291.. In that case the
prisoner was acquitted "under circumstances wherein plainly they would not have it if he had been endowed with bearing and speech;" 1 Bish. Cr. L. § 395.
A person deaf and dumb may be examined as a witness, provided he can be sworn; that is, if he is capable of understanding the terms of the oath, and assents to it, and if, after he is sworn, he can convey his ideas, with or without an interpreter, to the court and jury ; Phill. Ev. 14. If he is able to com municate his ideas perfectly by writing, he will be required to adopt that as the more satisfactory method; but, if his knowledge of that method is imperfect, he will be per mitted to testify by means of signs; 1 Greenl. Ev. § 366 ; Tayl. Ev. 1170.
Such person may execute a deed ; 1 H. L. Cas. 724; Barnett v. Barnett, 54 N. C. 221; but it is said in an old case that he is prima fade unable to make a contract or deed ; Brown v. Brown, 3 Conn. 299, 8 Am. Dec. 187; in Culley v. Jones, 164 Ind. 168, 73 N. E. 94, the question of capacity was left to the jury. See a note in 14 Ann. Cas. 52. Where a defendant is deaf and dumb and cannot hear the testimony of the witnesses of the state, the presiding judge should per mit some reasonable mode of having their evidence communicated to him ; Ralph v. State, 124 Ga. 81, 52 S. E. 298, 2 L. It. A. (N. S.) 509; where it was said that in such case opportunity should be given for the communication to the defendant of the tes timony, but the exact method of doing it must be left to the discretion of the court. A deaf person was convicted of murder. Held due process of law; Felts v. Murphy, 201 U. S. 123, 26 Sup. Ct. 366, 50 L. Ed. 689.