The defendants in the court below, and appellants here, were indicted, tried, and convicted of the crime of murder in tho first degree, at the July term of the district court for Grant county, for 1883. The bill of exceptions is submitted to this court without argument. The defendants were indicted for the murder of a China-man by the name of Wy Poi, alleged to have been killed by them on the third day of February, 1883, in the evening of that day. Numerous exceptions were taken by counsel for the defendants in the court below, but it will be unnecessary for us to consider more than one of them.
The principal witness offered for the prosecution at the trial was-a deaf and dumb child, who, at the time of the commission of the offense, was less than nine years of age, and at the time of the trial was but little more than nine years old. He was the only witness offered, who, it was claimed, had been an eye witness to the commission of the offense. Objection was made to his competency as a witness, both for the reason that he was so young a child, and that his physical infirmities were such as to make it impossible for him to intelligently narrate the occurrences which it was claimed he had witnessed. It was also claimed, that the child being wholly uneducated in the language of the deaf and dumb, that it was not possible for him to understand such questions as might be put to him touching the transaction. These objections were all overruled by the presiding judge in the court below, and exceptions were duly noted.
From the record it appears that the mother of the deaf and dumb boy, Luther Carey, was called, and sworn to act as an interpreter for the child. She testified in substance that he never had been educated, in the deaf and dumb language, but that she could make herself understood to him by signs, and that generally she could understand him. The court asked her this question: Question. “Ask him [the deaf and dumb boy] what will be done to him if he should tell an untruth as a witness here,—if he should tell a lie while he is giving his-testimony, what would be done to him?” Here, the record shows, Mrs. Carey made several signs and gestures to the deaf mute with her hands. Ansioer. “I cannot make him understand.” Q. “You say you cannot make him understand?” A. “No sir; I cannot. He has. the idea of the murder fixed in his mind, and he wants to tell that.” Q. “Can you convey to him an idea that he will be punished if he-does not testify truly?” Here the witness again repeats the signs and gestures to the mute. A. “I cannot make him understand me; he is telling how the murder was committed, and what he saw. He thinks he is wanted to tell what took place at the Chinaman’s house.that night.”
It is very evident from the testimony of the mother and brother of' the deaf mute that their only knowledge of what he said to them was. inferential, and based upon their familiarity with his signs and gestures, and only extended to the most ordinary every-day affairs of' life; that no exact code of conversation existed between them, but that in a limited way they understood his gestures and pantomime-in their reference to his every-day wants. The court, however, admitted the testimony of the child, and in doing so, used the following, language:
“This little boy has no education, yet I am inclined to believe that, notwithstanding the fact that the mother is unable to communicate to this little-boy any questions tending to test his knowledge of an accountability to the-Supreme Being, yet as a psychological fact, growing out of his mental condition, lie would be incapable of communicating any evidence except such as-he saw. He would be incapable of manufacturing or inventing a -falsehood , as to the material facts, unless he saw them. In my opinion this would be-a better test of the truth or at least as good a test of the truth as would be-the belief of a man of mature age and clear understanding in his accountability to the Supreme Being. This of -course breaks into the general rule of law as to the competency of witnesses, yet, all the facts in the case considered, I believe my view of the case to be the law, and that this case presents a well grounded exception to the general rule. My opinion is that the witness is competent; the very fact that ordinary ideas about tilings and events which he has not seen cannot be communicated to him is a better test of the credibility of what he is able to communicate by signs than would his mere belief in his accountability to the Supreme Being. The other class of ideas which he entertains would spring from the sensations of touch, taste, and smell. In this view of the case, I believe it is impossible for the boy to entertain ideas in regard to passing events unless he had actually witnessed them.”
The boy was then examined, and, as interpreted by his mother, gave; material testimony in the cause.
We are of opinion that the admission of this testimony, under alt •the circumstances, was erroneous. As the learned judge in the court below said, the admission of such testimony broke into the general rule of law as to the competency of witnesses. It appears to us to transgress several well-settled rules; it was not shown that the child had any intelligent idea whatever of the nature or sanctity of an ■oath; on the contrary, it was shown by the testimony of his mother that she could not explain to him its nature, or the consequence of telling a falsehood while testifying as a witness. There is no case which we can find in the books in which a person was permitted to testify under such circumstances. A case of such gravity as this would not, in our judgment, warrant the relaxation of the rule that there must be some sanction under which the oath is taken before the testimony could be .properly admitted. Not only was it impossible to explain to him the nature of an oath, but it was quite as impossible, on his subsequent examination, to make him understand the ■questions which were put to him; for example, his mother was asked:
Question. “Can you communicate to him now, so as to find out from him what he was doing there?” [Meaning at the place where the murder took place.] Answer. “No, sir; I cannot.” Q. “How are you able to state that he was there holding the horses?” A. “He marked it out as he did here. He placed himself holding horses near the Chinaman’s house. ” Q. “Explain where the horses were while the men were dismounted during this killing. Ask the boy that.” A. “I cannot explain it to him in that way; all that he can tell is that the men were killed, and who they were, and who did the killing. ”
We are clearly of the opinion that such testimony should not have been permitted to go to a jury in any cause, and least of all in a capital case.
The constitution of the United States, and bill of rights, provide that, “in all criminal eases, the accused has a right to be heard by himself and counsel, to demand the nature and cause of the accusation, * * * and to meet the witnesses against him, face to face.” Of course, this language means that the accused shall have the right to be confronted by the witnesses against him, under such circumstances as that their intelligence and truthfulness may be subjected to the test of thorough examination and cross-examination. It is entirely evident in this cause that the counsel for the accused, or the •accused themselves, could not by any possibility have intelligently tested either the recollection or the truthfulness of this deaf and dumb ■child, by reason of the inability of any one to either fully interpret their questions or his answers.
We are unable to concur in the view of the learned judge in the ■court below, that, “as a psychological fact, growing out of his mental ■condition, he would be incapable of communicating any evidence, ex•cept such as he saw. He would be incapable of manufacturing or inventing falsehood as to material facts, because he could have no •idea of the facts unless he saw them. * * * I believe it is impossible for the boy to entertain ideas in regard to events, unless he liad actually witnessed them.” In other words, the presiding judge was of opinion that the boy could not tell a lie, for the reason that he could only tell of such events as he had actually seen transpire. This was an assumption unwarranted by the facts. We see no reason why the imagination of that boy could not have been so developed as to have invented or fabricated a story of occurrences which had never taken place. Is it to be said that because a person is deaf and dumb that he wholly lacks imagination? We think not. Deaf and dumb persons have frequently, according to the experience of men, not only given evidence of strong imagination, but in several instances have been successful writers of fiction. It is no answer to this view to say that this child was uneducated; it only makes it more difficult to say to what extent his imagination may have been developed and may have acted.
We are therefore of opinion, for the reasons stated, that the court below erred in admitting the evidence of the deaf and dumb child, Luther Carey, as that of a competent witness.
We arrive at this conclusion with reluctance, as there is much reason to believe from an examination of the record that the defendants are guilty as charged. That fact, however, we cannot consider here. "A court inquiring after the regularity of proceedings never asks whether or not the defendant is guilty. A guilty man, when the proceedings are irregular, has the same right to escape from the grasp of the law as an innocent one; on the other hand, an innocent man has no rights in this respect which a guilty one has not. ” 1 Bish. Crim. Proc. § 92. The same authority in the following section adds: “The result is that one accused before the court has the same right to protest against the proceedings as to protest his innocence. And counsel who appear on his behalf have the same right, and are under the same obligation, to do the one as the other. * * * Human laws are meant merely to conserve the outward order of society, and a part of this order, not less essential than any other part, consists in pursuing the exact methods which the law has laid down in bringing criminals to justice. * * *” Id. § 93.
It is of the highest importance that, in so grave a case as the one under consideration, the exact methods which the law has laid down •should be pursued with the greatest strictness.
For the reasons stated herein, the judgment of the court below must be reversed, and a new trial ordered.
Axtell, C. J. I concur.