#### ELSIE LANIER, as Guardian of PENNIE LANIER, v. W. H. BRYAN.

(Filed 25 October, 1922.)

1. Witnesses — Qualification — Oath — Mental Capacity — Courts—Discretion — Appeal and Error.

It is the question of the mental capacity of a witness to understand and appreciate the solemn obligation imposed on him by oath to tell the truth, and his ability to correctly narrate the facts involved in the controversy, that determines his eligibility as a witness; and his youth and adjudged imbecility of mind are only evidentiary in the determination of the question by the judge; and his decision thereon, in the absence of a special finding of the facts, is not reviewable on appeal.

2. Appeal and Error — Harmless Error — Witnesses—Qualification—Evidence — Courts—Erroneous Opinion.

Where the mental capacity of a witness is the question before the trial judge to determine his eligibility as such, and upon the testimony of a medical expert he has, as a matter of law, erroneously adjudged the witness to be a competent one, this error is cured, or rendered immaterial by his subsequently making the same finding after hearing the testimony of other witnesses, and the testimony of the witness sought to be excluded, which supported his former ruling.

3. Witnesses — Qualification — Courts— Rulings — Evidence—Findings— Presumptions.

Where the trial judge has heard competent evidence sufficient to sustain his ruling, and adjudges that the witness is competent to testify in the action, it will be presumed, on appeal to the Supreme Court, that he has found facts sufficient to sustain his rulings, when it is silent in that respect.

Appeal by defendant from Lyon, J., at April Term, 1922, of ONsnow.

Civil action to recover damages for tbe seduction of tbe plaintiff. When the plaintiff was called as a witness tbe defendant objected to ber examination on tbe ground tbat sbe was incapable of understanding tbe obligation of an oatb and mentally incapable of testifying to tbe occurrences set forth in the complaint. His Honor then beard tbe testimony of Dr. McNairy, an expert in mental diseases, who bad treated ber in tbe Caswell Training School, and therefrom found tbe following as facts:

1. Tbe plaintiff, who was over tbe age of 21 years at tbe trial, bad been adjudged in a proceeding instituted and conducted before tbe clerk of tbe Superior Court of Onslow County to be of unsound mind.

2. Sbe was incapable of any sense of moral obligation and of understanding tbe nature of an oatb.

3. Mental defectives are idiots, imbeciles, or morons, and tbe plaintiff is a member of tbe second class, and has a mentality not in excess of a normal child ranging from three to six years of age.

*236Upon these facts, and what appeared from Dr. McNairy’s testimony, his Honor held as a matter of law that the plaintiff was a competent witness, and permitted her to be examined. The defendant excepted.

The plaintiff was then examined, and his Honor, at the conclusion of her' evidence, without specifically finding the facts, held upon all the evidence, of course including- her own testimony, that she was competent to testify as a witness. The defendant again excepted. The issues were answered in favor of the plaintiff.

Judgment, and appeal by the defendant.

Cowper, Whitaker & Allen, George B. Ward, and Duffy & Day for ■plaintiff.

Shaw <& J ones, Frank Thompson, and McLean, Varser, McLean & Stacy for defendant.

Adams, J.

The tests that have usually been applied to determine the •competency of a person offered as a witness are those of age, mental power, religious belief, and capacity to understand the nature and obligation of an oath. Particularly with reference to the first three of them the decisions have not been uniform. At one time the age of competency was fixed at fourteen, and children over that age were examined as a matter of course; but in some of the earlier decisions it was held that children under nine years of age were incompetent to testify, and that the competency of those between nine and fourteen was dependent upon their understanding and moral sense. With respect to age, it is now generally held that no precise minimum limit can be fixed, and that as to mentality the controlling factor is the strength of the witness’s understanding, or the degree of his intelligence. S. v. Edwards, 79 N. C., 650; S. v. Meyer, 14 A. & E., Anno. Cas., 3, n.

In a number of American cases decided in the first half of the nineteenth century it was held that idiots and insane persons were not competent to be witnesses; but subsequently the courts, “keeping pace with the progress of science” and the demands of a more enlightened period, relaxed the rigor of these decisions and modified the former strictness of the rule. It may be said that the substance of the modern doctrine was adopted in England in 1851, and announced by Lord Campbell in Reg. v. Hill. There a patient in a lunatic asylum was offered as a witness for the crown to testify on the trial of the defendant, who was prosecuted for homicide. When called and objected to he said, in part, upon examination as to his competency: “I am fully aware I have spirits. . . . I know which are mine. Those that ascend from my stomach and my head, and also those in my ears. I don’t know how many they are. The flesh creates spirits by the palpitation of the nerves and the *237rheumatics; all are now in my body and round my head; they speak to me incessantly, particularly at night. . . . They are speaking to me now; they are not separate from me. . . . They can go in and out through walls and places which I cannot. I go to the grave; they live-hereafter. . . . My ability evades me while I am speaking, for the-spirit ascends to my head. . . . It is perjury, the breaking of a lawful oath or taking an unlawful one; he that does it will go to hell for all eternity.” Lie was then .sworn and gave a collected and rational account of a transaction which he said he had witnessed.

Discussing his competency, Lord, Campbell 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 just investigation of truth requires such a course as has been pointed out to be pursued. ... It has been contended that the evidence of every monomaniac must be rejected. But that rule would be found at times very inconvenient for the innocent as well as for the guilty. The proper test must always be, Does the lunatic understand what he is saying, and does he understand the obligation of an oath? The lunatic may be examined himself, that his state of mind may be discovered, and witnesses may be adduced to show in what state of sanity or insanity he-actually is; still, if he can stand the test proposed, the jury must determine all the rest. In a fanatic asylum the patients are often the only witnesses to outrages upon themselves and others, and there would be-impunity for offenses committed in such places if the only persons who can give information were not to be heard.” 5 Cox Or. Law Gas., 266. The prevailing doctrine is in accord with this decision, and the principié-is generally recognized that a lunatic or a person affected with insanity is competent to be a witness if he has sufficient mind to understand the nature and obligation of an oath and correctly to receive and impart his. impressions of the matters which he has seen or heard. People v. Enright, 226 Ill., 221; Coleman v. Com., 25 Gratt., 865; 18 A. R., 711; Worthington v. Mencer, 17 L. R. A., 407; S. v. Myers, 37 L. R. A., 423, and note; S. v. Pryor, 46 L. R. A. (N. S.), 1028, and note; S. v. Simes, 9 A. & E., Anno. Gas., 1217; Dis. of Col. v. Armes, 107 U. S., 519.

But the defendant contends that Bennie Lanier was not influenced by any religious belief, and was not capable of comprehending the solemnity, nature, and purpose of an oath. It is conceded that a witness should be sensible to the obligation of the oath that he assumes, but, *238apparently tbe interpretation of tbe expression bas not been uniform. In Shaw v. Moore, 49 N. C., 26, Judge Pearson said: “Tbe law requires two guaranties of tbe truth of wbat a witness is about to state: be must be in tbe fear of punishment by tbe laws of man, and be must also be in tbe fear of punishment by tbe laws of God, if be states wbat is false; in other words, there must be a temporal and also a religious sanction of bis oath. In reference to tbe first, no question is made; but it is insisted that tbe religious sanction required is tbe fear of punishment in a future state of existence.

“This position is not sustained by tbe reason of tbe thing, for, if we divest ourselves of tbe prejudice growing out of preconceived opinions as to wbat we suppose to be tbe true teaching of tbe Bible, it is clear that, in reference to a religious sanction, there is not ground for making a distinction between tbe fear of punishment by tbe Supreme Being in this world, and tbe fear of punishment in the world to come; both are based upon tbe sense of religion.” In S. v. Pitt, 166 N. C., 270, two boys, aged respectively eleven and twelve, were challenged on tbe ground of their incompetency, and upon examination each of them said if be swore to a lie be would be imprisoned — one of them saying, in addition, that be intended to tell tbe truth, and was going to tell wbat be knew, and tbe other, that when be kissed tbe Book it meant that be would tell tbe truth. There was no further reference to religious sanction, and tbe trial judge admitted them as witnesses. On appeal tbe ruling was sustained, and tbe Chief Justice, citing with approval Shaw v. Moore, 49 N. C., 26, said that tbe finding of tbe court was conclusive on tbe question both of tbe intelligence and of tbe moral and religious sensibility of tbe witnesses.

This decision seems to have been based on tbe principle that where tbe trial judge, without particularly determining tbe facts, adjudges a person competent to be a witness, bis judgment is not subject to review because it implies a finding of tbe requisite facts; and by an application of .the principle to that case it appeared from tbe judge’s finding that tbe witnesses bad a sufficient comprehension of tbe obligation of an oath and tbe way in which they expressed their conception of such obligation was of secondary importance. Tbe decision approves tbe doctrine that the witness should have due appreciation of a moral duty to tell tbe truth, and conforms to tbe general rule that tbe judgment of tbe trial judge on tbe question of tbe competency of a person who is offered as a witness is a matter of discretion and will not be disturbed on appeal, unless there is an abuse of discretion, or unless tbe order admitting or rejecting tbe witness involves tbe erroneous construction of a legal principle. S. v. Perry, 44 N. C., 333; S. v. Manuel, 64 N. C., 601; S. v. Edwards, 79 N. C., 650; S. v. Finger, 131 N. C., 781; S. v. Pitt, 166 *239 N. C., 270; People v. Enright, Anno. Cas., 1913 E, 328, note; S. v. Meyer, 14 Anno. Cas., 7, note.

It is true tbat tbe order made by bis Honor at tbe conclusion of Dr. McNairy’s testimony involves tbe construction of a legal principle, and it would demand serious consideration if it were tbe only order relating to tbe competency of tbe plaintiff. But immediately after tbis order was made tbe plaintiff was examined as a witness, and after bearing ber testimony and considering it in connection witb other evidence bis Honor, without finding tbe facts, entered of record a general order adjudging tbe plaintiff competent to testify, and thus practically reversed and nullified tbe second finding of facts and so much of tbe third as may suggest want of capacity from immaturity of age, and brought tbe case within tbe general rule stated above, freed from tbe exceptions. Tbe defendant’s assignment of error as to tbe plaintiff’s competency is therefore overruled. Tbe motion for nonsuit was properly dismissed, for tbe evidence, considered independently of plaintiff’s testimony, was sufficient to warrant its submission to tbe jury. ¥e find no error in tbe record which entitles tbe defendant to a new trial.

No error.