#### STATE v. WILLIAM HARRIS.

’‘Where, uptin the'-arraignment of one for murder, it was suggested that the accused was a 'deaf mute and was incapable of understanding the nature oftl a trial, and its incidents and his rights under it, it was Held proper for a . jury to be empannelled to try the truth of these suggestions, and on such . jury’s responding in the affirmative of these suggestions, for the Court to decline putting the prisoner -oil his trial.

This was a preliminary issue on a case for murder, tried before Bailey, J., at the Spring Term, 1860, of Granville Superior Court.

The defendant was indicted for the murder of one Richard Eowler, and upon his arraignment, it was suggested that the prisoner was mute by the visitation of God, having been deaf and dumb from his birth. This fact was admitted by the *137■counsel for the State, who moved the Court to direct tfeeclerk to enter his plea of “not guilty,” and that the trial-should proceed on that issue. The defendant’s counsel then object* ■ed, that he was not able to plead to the indictment and was insane, and on argument, the Court refused the motion of the ■solicitor for the State, and ordered that a jury enquire: 1st. Whether the prisoner, William Harris, is able to plead to the indictment preferred against him. 2ndly. Whether the said prisoner, William Harris, is now sane or not. On the trial of the issues, directed to be submitted to the jury in this-case, the prosecution called sundry witnesses, who testified, in substance, that the prisoner had been a deaf mute from his infancy; that he was then between fifty and sixty years of age, and had a comfortable estate, which had always been under the management -of a guardian. That when the prisoner was about fourteen years of age, his mother, with whom he lived, intermarried with one Moody Fowler, by whom she had a family of children, among whom was Bic'h* ard Fowler, the deceased; that the prisoner continued to reside at the house of his step-father after he arrived at the age of majority, and the guardian of his estate paid for his board ; that Bichard Fowler, his half brother, was an inmate of the same house, and at the time of the homicide, and for some years before, was a married man, and his wife, after the death of his mother, some ten years since, had been the housekeeper of the family; that some three or four years before the homicide, prisoner ceased to lodge in the house of Moody Fowler, and of his own accord, first took lodging in a neighboring barn, then in a shelter, which he erected by the side of a log, and afterwards, about two years before the homicide, he constructed a small hut about the fourth of a mile distant from the house of Moody Fowler, in which he lodged until brought to prison for the alleged murder; that these lodgings were all very rude and uncomfortable, and especially, the first two had exposed him to severe suffering from cold ; that during all this time, he continued to get his food at the house of said Fowler, and either ate it there or carried it with him to his *138lodgings; that he was not required to work, but sometimes had worked on the farm and did his work intelligently; that he spent much of his time in fishing, both with hooks and traps, the latter of which he constructed and placed in the water himself, and in hunting with a gun ; that he could stock guns skillfully, and did work of that kind for himself and several neighbors, from whom he received compensation in money, and varied his charges according to his opinion of their ability to pay ; that he had also made intelligent and useful suggestions to mill-wrights when engaged in the mechanical work of their trade, and one of these, a witness, testified that, in his opinion, if the prisoner had been educated, he would have made one of the first mechanics in the country. These witnesses all testified that they considered him a sensible person ; that, in their opinion, he knew right from wrong, and that it was a crime to take the life of another person.— His step-father, Moody Fowler, testified that himself and others had learned to communicate with the prisoner by means of signs; that prisoner knew it was wrong to take life, and that witness, himself, had signified it to him very often before the homicide, and that the prisoner had a sign to indicate putting to death by hanging, which he often signified would be inflicted on a person who should kill another. Fie also stated, that he was a man of violent temper, and generally carried his gun, even when he came from his hut to the house for his food, and some four or five weeks before he had attempted or offered to shoot the deceased in the dining room of his house, when the witness interposed and prevented him.. Charity Fowler, the widow of the deceased, stated that on the evening of the homicide, her husband with a friend had taken supper in the dining room and walked into another apartment* of the house, leaving her at the table ; that the prisoner- soon afterwards came in with his gun, seeming to be-very angry;-, that he sat down and declared to her, by a sign, that he would shoot deceased ; that she remonstrated with him, that he must-not, but he persisted in his declaration. She then called to. her husband, in the other room, and told him not to come. *139in there, that the prisoner said he would shoot him ; that the deceased enquired what she said, and she repeated her language, as lie walked into the dining room, when the prisoner fired and the deceased fell and died immediately; that prisoner went off then to his hut and did not come to the house in all the next day for his food, which he never failed to do before; that on the day following he came, when he was arrested, deprived of his gun and carried to prison.

These witnesses also, severally, testified that they believed the prisoner knew that he was then in Court, because of having killed Richard Fowler. When asked, whether they believed he could be made to understand the contents of the bill of indictment, some of them answered that they believed he could, but no one professed to able to communicate them to him; others doubted as to his ability to understand this, and none of them supposed that it could be communicated to him that he had the rights of challenge allowed by law, and that he could be made to comprehend the testimony of the witnesses and cross-examine or contradict them.

The prisoner’s counsel also called several witnesses, who testified that the prisoner had never been educated in any school for deaf mutes — seemed to, have tm idea of responsibility to the Supreme Being — never was known to attend church or to have any sense of religious duty — spent the sabbath frequently in fishing and hunting, and had no idea of moral responsibility. The witnesses, with the exception of two, stated that they believed that he knew right from wrong, and that it was wrong to kill the deceased^ They did not believe that he eould be made to understand the contents of the indictment, or why he was brought into Court.

Mr. Cooke, the Principal of the Asylum for the deaf and dumb in this State; was examined, and said that he had endeavored to communicate with the prisoner by natural signs, and found him capable of narrating occurrences which he had witnessed, but could not discover that he had any idea of moral or religious responsibility; that, in his opinion, he could not be made to comprehend the indictment, or his rights of *140challenge, or cross-examination.; that deaf mutes were very rarely idiotic, and he believed the prisoner had the capacity ©f'Ordinary uneducated deaf mutes.

'The counsel for the State, moved his Honor to instruct the jury : 1st. That if, in their belief, at the time of the homicide, the prisoner knew right from wrong, and that it was wrong to take the ¡life of the deceased, that they should find both issues against him. :2dly. That if at this time they believed the prisoner knew rightdrom wrong,-and it was wrong to take the life'of the deceased, they should .find both issues against •him.

The prisoner’s counsel-moved the Court to charge the jury, that if they believed from the evidence, that the prisoner -is now of unsound mind, so that he cannot understand the charge against him in the indictment, and cannot understand, or be made to understand, the nature and purpose of the trial and of his rights therein, they should .find the issues -in his favor.

The Court refused the instructionsfprayed by the State, and .gave those prayed by the prisoner’s .counsel. The solicitor •excepted. And the jury, under the ¡instructions aforesaid, found both issues in favor of the defendant.

Whereupon the -Court reciting, that it appeared to him, that the said Harris was-incapable -of being brought to trial, ■ordered that this finding of the jury should be certified to the County Court of Uranville, to the end, that provision should he made for his safekeeping in the asylum for the insane, or •otherwise according to .law. From this order, the solicitor •appealed.

Attorney General, with whom was Graham, for the State.

Miller and Roade,,ior the defendant.

Battle, J.

'The proceedings in this case are a movelty in ■the administration or criminal justice in this State, and but for the light which is flu-own upon them by some recent >de*141cisions in that country from which our common law is derived, Ave might find a difficulty in dealing-with them.

In Rex v. Dyson, which is reported in 2 Lewin’s Cr. Cas. 64, and also in a note to Rex v. Pritchard, 82 Eng. C. L. Rep. 518, the prisoner was indicted for the murder of her bastard child, by cutting off its head. She stood' mute; and a j-ury Avas empannelled, to try whether she did’ so- by malice or by the visitation of God ; and evidence hatdngbeen given of her ahvays having been deaf and dumb, the jury found that she stood mute by the visitation of God.

The learned Judge then examined a Avitness on oa-th, who* swore that he was acquainted' with her, and that she could be made to- understand some things by signs, and could give her ansAvers in the same way. The Avitness was then SAVorn as follows : “ Yon swear, that you will well and truly interpret, and make knoAvn to the prisoner at the bar, by such signs, ways, and methods, as shall be best known to you, the indictment AvhereAvith she stands charged ; and also, all such matters and things as the Court shall require to be made knoAvn to her; and also, well and truly to interpret to the Court, the plea of the said prisoner, to the indictment, and all answers of -the said prisoner to the said matters and things so required to be made known to her, according to the best of your skill and understanding. So help you God.”

The Avitness then explained to her, by signs, what she Avas charged Avith, and she made signs, which obviously imported a denial, and Avhich he explained to be so. This being done, the Judge directed a plea of “not guilty” to be recorded.— The AAntness was then called upon to explain to her, that she was to be tried by a jury, and that she might object to such as she pleased; but, he and another witness stated, that it was impossible to make her understand a matter of that nature ; though, upon common subjects of daily occurrence, which she had been in the habit of seeing, she was sufficiently intelligent. One of the witnesses had instructed her in the dumb alphabet, but she was not so far advanced as to put words together, and the Avitness swore, that, though she was *142then incajiable of understanding the nature of the proceedings against her, and making her defense, yet he had no doubt that with time and pains, she might be taught to do so by the means used for the instruction of the deaf and dumb.

The Judge (Mr. Justice J. Parke) then directed the jury to be empannelled and sworn, to try whether she was sane or not; whereupon, the same witnesses were sworn and examined, and proved her incapacity, at that time, to understand the mode of her trial, or to conduct her defense.

The Judge, in charging the jury so empannelled, referred to Lord Hale, who, in his Pleas of the Crown, Yol. 1st, page 34, says, “If a man, in his sound memory, commits a capital offense, and, before his arraignment, he becomes absolutely mad, he ought not, by law, to be arraigned during such his plirensy, but be remitted to prison until that incapacity be removed. The reason is, because he cannot, advisedly, plead to the indictment. And if such person, after his plea and before his trial, become of nonsane memory, he shall not be tried; or if, after his trial, he become of nonsane memory, he shall not receive judgment; or, if after judgment, he become of nonsane memory, his execution shall be spared; for,' were he of sound memory, he might allege, somewhat, in stay of judgment or execution. Put, because there may be great •fraud in this matter, yet, if the crime be notorious, as ti’eason or murder, the judge, before such respite of trial or judgment, may do well to empannel a jury to enquire ex officii), touching such insanity, and whether it be real or counterfeit” The Judge then told the jury, that if they were satisfied that the prisoner had not then, from the defect of her faculties, intelligence enough to understand the nature of the proceedings against her, they ought to find her “ not sane,” which they accordingly did. His Lordship, thereupon, ordered her to be kept in strict custody, under the 39 and 40 Geo. 3, chap. 94, sec. 2, till his magesty’s pleasure should be known.

A similar cause oecnred afterwards, before Baron Alderson, (See Rex v. Pritchard, 7, Car. and Payne, 303, 32 Eng. C. L. Rep. 517) when he refered to Rex v. Dyson, and said the *143course which Mr. Justice Parke had pursued, had been approved of by several of the Judges, and that he should follow it. He accordingly had a jury empannelled, and told them that there were three points to be enquired into. “ First, whether the prisoner is mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of the proceedings on the trial, so as to make a proper defense; to know that he may challenge any one of you to whom he may object, and to comprehend the details of the evidence, which, in a case of this nature, must constitute a minute investigation. Upon this issue, therefore, if you think there is no certain mode of communicating the details of the trial to the prisoner so that he can clearly understand them, and be able, properly, to make his defense to the charge, you ought to find that he is not of sane mind. It is not enough that he may have a general capacity of communicating on ordinary matters.” The jury returned a verdict that the prisoner was not capable of taking his trial.

We have stated these cases with more than usual particularity, because they set forth clearly, the true grounds upon which a deaf and dumb prisoner, whose faculties have not been improved by the arts of education, and who, in consesequence thereof, cannot be made to understand the nature and incidents of a trial, ought not to be compelled to go through, what must be to him, the senseless forms of such a trial. Whether arising from physical defect or mental disorder, he must, under such circumstances, be deemed “ not sane,” and of course, according to the great authority of Lord Hale, he ought not to be tried. The allowance to prisoners in this State the full benefit of counsel in every thing connected with their trial, has not been deemed sufficient to change the law as to one mentally insane, and we think it cannot have that effect in a case, like the present, of a defect of the physical faculties. The proceedings in the present case, including the instructions given to the jury by the presiding Judge, are substantially the same as those in the English cases to which *144'we have referred, and we now declare our- approbation of1 them.

It will be borne in mind, however, that when-.-a jury is empannelled in this State, in the ease of'a deaf and dumb prisoner, there is no need of an issue to-enquire, whether he stands mute of malice, because, even if he could speak, and yet stood mute designedly, the Court must ord'er the plea of “not guilty” to be entered'for him, as requiredfoy the-Rev. .Code, ch.. 35, sec. 29.

It must be-certified to.the Court below, that there is no-error in the record.

Per Curiam,

Judgment-affirmed'..