Idiots, lunatics, intoxicated persons, and, generally, those who labor under such pri vation or imbecility of mind that they can not understand the nature and obligation of an oath. The competency of such is re stored with the recovery or acquisition of this power ; Livingston v. Kiersted, 10 Johns. (N. Y) 362 ; Evans v. Hettich, 7 Wheat. (U. S.) 453, 5 L. Ed. 496; but the question of their credibility should be left to the jury; Walker v. State, 97 Ala. 85, 12 South. 83. And so a lunatic in a lucid interval may tes tify ; 1 Greenl. Ev. § 365 ; even though an inmate of an insane asylum ; State v. Brown, 2 Marvel (Del.) 380, 36 Atl. 458 (where the testimony was admitted by a divided court); Pittsburgh & W. Ry. Co. v. Thompson, 82 Fed. 720, 27 C. C. A. 333 ; or one who has been adjudged insane ; Wright v. Exp. Co., 80 Fed. 85; and the question whether a luna tic has sufficient understanding to testify is to be determined by the court ; District of Columbia v. Armes, 107 U. S. 519, 2 Sup. Ct. 840, 27 L. Ed. 618, where it was said that the rule as laid down in Reg. v. Hill, 5 Cox C. C. 259, "has never been overruled." Per sons deaf and dumb from their birth are presumed to come within this principle of exclusion until their competency is shown ; 1 Greenl. Ev. § 366 ; but such a person is not deemed to be an idiot; State v. Howard, 118 Mo. 127, 24 S. W. 41. A witness unable to speak or hear is not incompetent, but may give his evidence by writing or by signs, or in any other manner in which he can make it intelligible; Steph. Ev. art. 107. See Com. v. Casey, 11 Cush. (Mass.) 417, 59 Am. Dec. 150. A person in a state of intoxication can not be admitted as a witness ; Gebhart v. Shindle, 15 S. & R. (Pa.) 235. See Hartford v. Palmer, 16 Johns. (N. Y.) 143. Deficiency in perception must go to the incapacity of perceiving the matter in dispute, in order to operate as an exclusion, hence a blind man can testify to what he has heard, and a deaf man to what he has seen ; 1 Whart. Ev. § 401.
Such as are insensible to the obligation of an oath, from defect of religious sentiment or belief. Atheists, and persons disbelieving in any system of divine rewards and punish ments, are of this class, and are at common law incompetent as witnesses ; Bull. N.. P. 292. See 1 Atk. 21; Butts v. Swartwood, 2 Cow. (N. Y.) 431, 433, n.; Arnold v. Arnold's Estate, 13 Vt. 362 ; Central Military Tract R. Co. v. Rockafellow, 17 Ill. 541; Smith v. Coffin, 18 Me. 157. It is reckoned sufficient qualification in this particular if one believe in a God and that he will reward and punish us according to our deserts. It is enough to believe that such punishment visits us in this world only; 1 Greenl. Ev. § 369; Blair v. Seaver, 26 Pa. 274 ; Brock v. Milligan, 10 Ohio, 121; Atwood v. Welton, 7 Conn. 66 ; People v. McGarren, 17 Wend. (N. Y.) 460; State v. Belton, 24 S. C. 185, 58 Am. Rep. 245; see 3 Tayl. Ev. 9th ed. 910, where the cases are collected.
It matters not, so far as mere competency is concerned, that a witness should believe in one God, or in one God rather than an other, or should hold any particular form of religious belief, provided only that he brings himself within the rule above laid down. And, therefore, the oath may be ad ministered in any form whatever, and with any ceremonies whatever, that will bind the conscience of the witness ; 1 Greenl. Ev. § 371; 1 Sm. L. Cas. 739. See OATH. By stat ute in England and in most of the states, religious disbelief no longer disqualifies, pro vision being made for an affirmation instead, and the witness, if testifying falsely, being subject to the penalties of perjury ; Whart.
Ev. § 395, n. See, generally, 1 Sm. L. Cas. 737, where, under such a statute, the witness testified that he had no belief in a supreme being or a future state of rewards and pun ishment, it was error to charge that this might be considered as affecting his credibil ity ; Brink v. Stratton, 176 N. Y. 150, 68 N. E. 148, 63 L. R. A. 182.
Persons infamous, i. e. those who have committed and been legally convicted of crimes the nature and magnitude of which show them to be insensible to the obligation of an oath. See INFAMY. Such crimes are enumerated under the heads of treason, ony, and the crimen falsi; 1 Greenl. Ev. I 373 ; 2. Dods. Adm. 191. See • CR1MEN rALRI.
The only method of establishing infamy is by producing the record of conviction. It is not even sufficient to show an admission of guilt by the witness himself ; People v. Whipple, 9 Cow. (N. Y.) 707 ; Com. v. Bon ner, 97 Mass. 587; but in England a witness may be asked whether he has been convicted, etc.; Steph. Ev. art. 130. Pardon or the re versal of a sentence restores the competency of an infamous person, except where this disability is annexed to an offence by a stat ute ; 1 Greenl. Ev. § 378 ; 2 Hargr. Jurid. Arg. 221. See U. S. v. Hall, 53 Fed. 352 ; Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429 ; Martin v. State, 21 Tex. App. 1, 17 S. W. 430 ; even if granted for the rea son, among others, that his testimony was de sired by the government in a cause then pend ing; Boyd v. U. S., 142 U. S. 450, 12 Sup. Ct. 292, 35 L. Ed. 1077. See PARDON.
This exclusion on account of infamy or defect in religious belief applies only where a person is offered as a witness ; 2 Q. B. 721. But wherever one is a party to the suit, wish ing to make affidavit in the usual course of proceeding, and, in general, wherever the law requires an oath as the coudition of its pro tection or its aid, it presumes conclusively and absolutely that all persons are capable of an oath ; Skinner v. Perot, 1 Ashm. (Pa.) 57. There is a conflict of authority as to how far a foreign judgment of an infamous offence disqualifies a witness. In New York, he is not disqualified ; National T. Co. v. Gleason, 77 N. Y. 400, 33 Am. Rep. 632. In Pennsylvania, he is held not to be disqualified unless the record of conviction be produced, and not then if he has served out his term of imprisonment ; Com. v. Hanlon, 3 Brewst. (Pa.) 461. In Massachusetts, the record is ad mitted merely to affect his credibility ; Com. v. Green, 17 Mass. 515. In New Hampshire, the witness will be disqualified if the laws of his own state make him so, and the crime, if committed in New Hampshire, would have had the. same effect ; ' Chase v. Blodgett, 10 N. H. 22. In Campbell v. State, 23 Ala. 44; and Uhl v. Coin., 6 Gratt. (Va.) 706; the rec ord is rejected altogether ; but not so in State v. Candler, 10 N. C. 393. He is disqualified in Nevada ; State v. Foley, 15 Nev. 64, 37 Am. Rep. 458. See Whart. Confi. Laws §§ 107, 769. A conviction and sentence can have no such effect beyond the limits of the state in which the judgment is rendered unless the statute of another state give such effect to them ; Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429. If a statute permits a defendant in a criminal case to testify on his own behalf, he may do so, though in famous, but not against a co-defendant; State v. Peterson, 35 S. C. 279, 14 S. E. 617.