This appeal is from a judgment of conviction for rape in the first degree, punishment having been assessed at imprisonment in the penitentiary for the term of 15 years. The information charges that in Jefferson county, on or about the 3d day of April, 1921, Frank Hyde, "did then and there willfully, unlawfully, and feloniously have and accomplish an act of sexual intercourse with a female, to wit, Floy Parker, then and there not his wife, and then and there being incapable through unsoundness of mind of giving legal consent."
It is contended on the part of the defendant that, in any view which may reasonably be taken of the testimony of the prosecutrix, it was insufficient to warrant or sustain the verdict, for the reason that, if the prosecutrix was so weak-minded and mentally unsound as to render her incapable of giving legal consent to the act charged, she must have been, for the same reason, incapable of giving competent testimony concerning the commission of such act.
Rape is defined in our Penal Code as follows:
"Rape is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, under either of the following circumstances:
* * * * * *
"Third. Where she is incapable through lunacy or any other unsoundness of mind, whether temporary or permanent of giving legal consent."
Section 1834, Comp. Stats. 1921. *Page 78
Our statute provides:
"The following persons shall be incompetent to testify: First. Persons who are of unsound mind at the time of their production for examination." Section 589, Comp. Stats. 1921.
At the trial the state produced as a witness the prosecutrix, Floy Parker, and after she was sworn counsel for defendant asked permission to inquire into her mental condition to determine whether or not she was a competent witness. The jury retired in charge of a bailiff. Counsel for defendant thereupon proceeded to examine the witness; then counsel for the state cross-examined her. Counsel for defendant then offered the testimony of two doctors, who testified that witness was of unsound mind. The court ruled that Floy Parker was a competent witness, and over defendant's objection her testimony was admitted. The statute does not undertake to prescribe or define the amount or degree of mental unsoundness that must exist in order to disqualify the witness. The question of competency is one of law, and must be determined by the court.
In Adams v. State, 5 Okla. Crim. 347, 114 P. 347, it is said:
"When a witness is objected to on the ground that he or she is incompetent by reason of want of intelligence, it is the province of the trial court to determine the witness' competency, and its decision will not be reviewed unless there is a clear abuse of discretion, or the court admits or rejects the witness upon an erroneous view of a legal principle."
In Walker v. State, 12 Okla. Crim. 179, 153 P. 209, it is said:
"Under the statute, when a witness is objected to, on the ground of incompetency by reason of nonage, or want of intelligence, it is the province of the trial court to determine the witness' competency, and its decision will not be *Page 79 reviewed unless there is a clear abuse of discretion, or the court admits or rejects the witness upon an erroneous view of a legal principle. * * * In this case no question seems to have been made as to the witness' capacity to receive just impressions respecting the facts upon which she was to be examined. While she stated that she did not understand the nature of an oath, as possibly many an adult might do if required to define the nature of the crime of perjury, we are satisfied that she understood the difference between right and wrong and the danger of false swearing, and that she was of sufficient intelligence to appreciate the conditions in which she was placed. Courts of justice should regard substance, not words, and a child that has an adequate sense of the impropriety of falsehood does understand the nature of an oath in the proper sense of the term, even though she may not know the meaning of the word `oath,' and may never have heard that word used."
In the case of State v. Simes, 12 Idaho, 310, 85 P. 914, 9 Ann. Cas. 1216, the precise question was determined by the Supreme Court of Idaho. In the opinion it is said:
"Since no conviction can be had without the state establishing beyond a reasonable doubt that the female was of unsound mind at the time of the commission of the alleged offense, and every presumption must be resolved in favor of the accused until overcome by legal and competent evidence, it would seem to follow, as a logical conclusion, that the prosecutrix, when produced as a witness, should, in the eye of the law, stand on the same footing as any other witness, sharing the same credit for sanity and competency as is prima facie accredited to all persons. The defendant in such a case, if he is going to enter a plea of not guilty and stand a trial, must thereupon proceed upon the presumption which the law accredits him. He cannot go to trial on the plea that he is innocent, and, the moment the state produces a witness against him, interpose an objection based upon the theory that the state has already established by its pleading one of the material and essential facts against him. When a witness is produced it is a right and privilege accorded to the *Page 80 adverse party to object to the examination of such witness upon the ground of incompetency to testify. The question of competency is clearly one of law and must be determined by the court. Section 7883, Rev. St. 1887; Wigmore on Ev. § 497; 2 Elliott on Ev. § 753; Underhill, Cr. Ev. § 203; Cannady v. Linch, supra; Holcomb v. Holcomb, 28 Conn. 177. There is no fixed or established rule for determining such question. It seems, however, to be the usual practice, and, we think, the proper and orderly way to proceed, for the court to examine the witness for the purpose of ascertaining his condition of mind and ability to truthfully and correctly narrate the facts concerning which he is called to testify; and, in the determination of this fact, it may often be found proper and necessary to call other witnesses to testify. After the court has determined that the witness offered is competent to testify, the question of his credibility immediately becomes a matter for the consideration and determination of the jury. The mental condition of a witness, as manifested by him on the witness stand, almost invariably influences the jury as to the weight they will give his testimony. The manner in which a witness tells his story, the advantages he appears to have had for gaining accurate information on the subject, the accuracy and retentiveness of his memory, his capacity for consecutive narration of acts and events, his apparent frankness and intelligence, and numerous other considerations, all go to make up the sum total of credibility that the jury will give to the evidence of any particular witness. It should be borne in mind, too, that the mental capacity of the female to give her consent to the act for which the defendant is prosecuted is a question of fact for the jury to determine along with all the other questions of fact submitted to them by the evidence. Counsel for appellant argues, however, that, if the prosecutrix was so weak-minded and mentally unsound as to render her incapable of giving an intelligent assent to the violation of her person, she must have been, for the same reason, incapable of giving competent testimony concerning the commission of that act. While there is apparent reason for such an assumption, and in many cases it would undoubtedly be true, we don't think *Page 81 the position tenable as a rule, nor that the latter conclusion necessarily follows the existence of the former fact. It would seem that a female, although of mature years, and fully developed physically, might be so far insane and mentally deranged as not to realize or appreciate the impropriety or effect of the illicit act, and still might be capable of giving a substantially correct and truthful statement of the occurrence and conditions under which it took place. Incapacity to give intelligent and legal consent to an act does not necessarily imply incapacity to thereafter correctly narrate the facts constituting the commission of the act."
After much investigation we have reached the conclusion that the rule supported by reason and the weight of authority is that incapacity to give legal consent to the commission of an act of carnal intercourse does not necessarily imply incapacity to thereafter correctly and truthfully narrate the facts constituting the commission of the act; and the fact that the state accuses the defendant of rape in having accomplished an act of sexual intercourse with a female not his wife, who was at the time of unsound mind and incapable of giving legal consent, does not per se establish the incompetency of such female to testify against the accused.
In this case the record discloses such facts as convince us that the prosecutrix was competent to testify. We accordingly hold that the court did not err in overruling the objections made to her competency, and that the court properly permitted her to testify. The credibility of the witness was properly left to the jury, and has been determined by them.
The weight of the evidence was a question for the jury under the instructions of the court, which gave the defendant the benefit of all reasonable doubt, and we are not prepared to say that the verdict is not supported by the evidence. *Page 82
In conclusion we simply add that the most careful examination of this record has revealed nothing that gives us the right to say that the interests of justice require a new trial.
It follows that the judgment of the district court of Jefferson county must be affirmed; and it is so ordered.
MATSON, P.J., concurs.
BESSEY, J., absent, and not participating.