people of the state, etc., and the defendant." The affirmative answer of the witness given to this question is equivalent to an oath, and renders him liable to a prosecution for perjury if he testifies falsely.

7

A witness who is sworn before a separate trial is ordered, where several are jointly indicted, must be re-sworn when testifying at the separate trial of each."

State v. Whisenhurst, 2 Hawks (N. Car.) 458, 459. If the witness, when sworn, fails to object to the form of oath as taken by him, he is still liable for perjury, though he did not consider himself bound thereby. State v. Whisenhurst, 2 Hawks (N. Car.) 458, 459. It is not error in a criminal trial, if the accused has assumed various aliases, for the clerk to repeat them in swearing a witness, stating also his true name. If the aliases are set forth in the indictment, it is difficult to understand how their repetition by the clerk in the hearing of the jurors will prejudice the accused. People v. Everhardt, 104 N. Y. 591, 596, 11 N. E. 62, 5 N. Y. St. 793, 2 Sil. App. (N. Y.) 506, 6 N. Y. Cr. 231.

§201. Religious belief of the witness.-The common law, because of the great importance which in early times was attached 'State v. Welch, 79 Me. 99, 103, 8 p. 33, the court quotes Puffendorf, Atl. 348. 4th book, 4, p. 122: "That part of the form in oaths under which God is invoked as a witness, or as an avenger, is to be accommodated to the religious persuasion which the swearer entertains of God; it being vain and insignificant to compel a man to swear by a God whom he doth not believe, and therefore doth not reverence; and no one thinks himself bound to the Divine Majesty in any other words, or under any other titles, than what are agreeable to the doctrines of his own religion, which, in his judgment is the only true way of worship. And hence, likewise, it is, that he who swears by false gods, yet such as were by him accounted true, stands obliged, and if he deceives, is really guilty of perjury; because, whatever his peculiar notions are, he certainly had some sense of the Deity before his eyes, and therefore by willfully forswearing himself, he violated, as far as he was able, that awe and reverence he owed to Almighty God; yet when a person, requiring an oath from another, accepts it under a form agreeable to that worship which the swearer holds true, and he himself holds for false, he cannot in the least be said hereby to approve of that worship."

9

Abbott Trial Brief (Cr. Causes), $ 337; Babcock v. People, 15 Hun (N. Y.) 347. On a trial for felony, it is error to swear a witness while the accused is not in court. Bearden v. State, 44 Ark. 331. See Underhill on Ev., §§ 346, 367. But the objection that a witness was not properly sworn cannot be raised for the first time when a motion is made for a new trial. Goldsmith v. State, 32 Tex. Cr. 112, 115, 22 S. W. 405. In Omichund v. Barker, I Atkyns,

to the religious element of an oath, declared all persons to be incompetent as witnesses who did not believe in a Deity who would punish perjury.10 And it was said with much vehemence that to require an oath to be taken by a person, who, like the atheist, denied his existence, was a mockery of justice. But every one born in a Christian land and educated under the influence of Christianity was presumed, until the contrary was shown, to possess sufficient religious faith to qualify him as a witness. In any case he was only required to believe in a God who would punish perjury, and it was immaterial whether he believed that the culprit would be punished in this life by the pangs of remorse or otherwise, or whether punishment would be inflicted beyond the grave.11

The witness could not usually be asked directly as to his possession or lack of possession of a religious belief. His atheism or infidelity must always be shown by the evidence of other witnesses in whose presence and hearing he had voluntarily declared his irreligion, though the fact that he had subsequently acquired sufficient religious faith to render him competent might also be shown.13

12

In almost every state of the Union statutes have been enacted, providing in substance that no person shall be incompetent as a witness because of his belief or disbelief in the tenets of any system of religious teaching, provided he understands the nature of an oath.

Where such statutory provisions prevail in conformity therewith, and having regard to the existing federal and state constitutional enactments which are intended to secure freedom of religious belief and worship,1 any question intended to discredit a witness by showing him to be an atheist or an agnostic would be very objectionable. 15

10 Rex v. White, 2 Leach Cr. L. 482. "Cubbison v. McCreary, 2 W. & S. (Pa.) 262; Bush v. Commonwealth, 80 Ky. 244, 248; Commonwealth v. Hills, 10 Cush. (Mass.) 530, 532; Chappell v. State, 71 Ala. 322, 324; State v. Powers, 51 N. J. L. 432, 433, 17 Atl. 060, 14 Am. St. 693.

12

Commonwealth v. Smith, 2 Gray (Mass.) 516, 61 Am. Dec. 478.

13 Atwood v. Welton, 7 Conn. 66; as regards the reception of declarations to prove mental conditions, see Underhill on Ev., §§ 51, 52.

14 U. S. Const. Amend., Art. I.

13

People v. Copsey, 71 Cal. 548, 550, 12 Pac. 721.

So, where it had been provided in the state constitution that no person shall be denied the enjoyment of any civil right or privilege on account of his religious principles, it has been held that the accused is not incompetent as a witness in his own behalf because he does not belief in a God who will punish him if he perjures himself.16

So, usually, where the competency of witnesses is regulated by a statute which fails to specify any religious test, the same rule will apply and the fact that the witness is an atheist or a disbeliever in a future state of existence beyond the grave will not render him incompetent.17

§ 202. Insanity-When disqualifying a witness.-Very little distinction, if any, was made by the common law between the numerous forms which insanity assumes. As regards the competency of a person as a witness, insanity of any kind, once established, seems to have been an insurmountable objection. It was immaterial whether the person mentally unsound was an imbecile or idiot, a furious maniac, or a quiet sufferer from melancholia, senile dementia, or from some harmless and perhaps temporary monomania.18

It is now held universally that the insanity or intellectual weakness of a witness, no matter what form it assumes, is not a valid objection to his competency if, at the time he is testifying, he has mental capacity to distinguish between right and wrong, so far as the facts in issue, and his testimony thereon, are involved, understands the nature and obligation of an oath, and can give a fairly intelligent and reasonable narrative of the matters about which he testifies. 19

10

Perry v. Commonwealth, 3 Gratt (Va.) 632; Hronek v. People, 134 Ill. 139, 152, 24 N. E. 861, 23 Am. St. 652; Ewing v. Bailey, 36 Ill. App. 191; Colter v. State, 37 Tex. Cr. App. 284, 39 S. W. 576; State v. Powers, 51 N. J. L. 432, 433-436, 17 Atl. 969, 14 Am. St. 693.

17 State v. Williams, III La. 179, 35 So. 505.

19 2 Elliott Ev., $$ 750-771; I

Greenleaf on Evidence, § 365; Roscoe's Crim. Evidence, 118; Best Ev., 168.

19 Tucker v. Shaw, 158 Ill. 326, 41 N. E. 914; State v. Brown, 2 Marv. (Del.) 380, 36 Atl. 458; Reg. v. Hill, 5 Eng. L. & Eq. 547, 5 Cox. C. C. 259, 266, 15 Jur. 470; District of Columbia v. Armes, 107 U. S. 519, 520-524, 27 L. ed. 618, 2 Sup. Ct. 840; Coleman v. Commonwealth, 25 Gratt. (Va.)

An inquisition of insanity,20 or the fact that a person alleges and endeavors to prove his own insanity,"1 does not conclusively render him incompetent as a witness.

A witness is not incompetent to testify upon the grounds of his insanity merely because he has been adjudged insane and has been confined in an insane asylum. Evidence of these facts is not conclusive of his insanity. They raise a prima facie presumption of incompetency which the party offering the witness must overcome. The question is one wholly for the trial court in determining the competency of the witness. There is no presumption that insanity shown to have existed has continued down to the date of the trial. The court should consider the conduct and actions of the witness in the court room and may also take into consideration his manner of giving testimony. If the witness appears rational and meets the tests imposed by law in case of the alleged insanity of a witness, he is competent, though it may appear that at one time he was in an asylum for the insane.22

A witness examined out of court by a commission will be presumed to be sane. If evidence of his insanity is introduced when his deposition is offered to be read, the jury will be permitted to determine his mental capacity."

23

§ 203. Mode of proving insanity of witness.-The objecting party may prove the insanity of the witness either by examining him," or by other witnesses, 25 or by written proof showing that he has been legally pronounced a lunatic.

The question of competency is of course judicial, while the credibility of the testimony is for the jury alone. If the inca

865, 874, 875, 18 Am. 711; Walker v. State, 97 Ala. 85, 86, 12 So. 83; State v. Simes, 12 Idaho 310, 85 Pac. 914; Covington v. O'Meara (Ky. 1909), 119 S. W. 187.

59.

29 Kendall v. May, 10 Allen (Mass.) the witness claimed to be possessed

" Dickson v. Waldron, 135 Ind. 507, 34 N. E. 506, 35 N. E. 1, 41 Am. St. 440, 24 L. R. A. 483. See Ante, §§ 159-163.

22 Covington V. O'Meara 1909), 119 S. W. 187.

of spirits who guided all his affairs yet recognizing the meaning and soundness of his oath his testimony was received.

23

Livingston v. Kiersted, 10 Johns (Ky. (N. Y.) 362.

pacity has intervened since the occurrence which the witness is called on to relate; if it is temporary, and a speedy restoration to sanity seems probable, the court may direct an adjournment.26

If, in the course of the examination of a witness, it becomes apparent to the court that he is incompetent because of insanity, the court may stop the examination and instruct the jury to disregard his evidence, though it had on the preliminary examination to ascertain competency, pronounced him sane.27

The testimony of insane witnesses has usually been received because of the necessity of the case and the absence of other witnesses. The jury may consider the mental condition of the witness at the time of the transaction he describes, and while he is testifying, in order to determine his capacity for observation, his powers of recollection and his disposition and ability to describe events correctly.28 If they disbelieve him, and his testimony is uncorroborated, the jury should reject it altogether.29

§ 204. Deaf mutes as witnesses.-The early common law regarded the deaf mute as an idiot.30 He was prima facie devoid of intelligence or understanding, so that he was presumptively incompetent as a witness until it was clearly and affirmatively shown that he possessed a sufficient degree of intelligence to qualify him. The burden of proving him competent was on the party calling him to testify.

The intelligence of an ordinary deaf mute witness is for the jury and where the facts are placed before the jury, it is improper to permit another witness to express an opinion that the deaf mute is or is not intelligent. A witness may testify to any facts from which the condition of the deaf mute may be inferred, and while