dissenting.
Two juries have passed upon the material evidence in this case. Each jury returned a verdict for plaintiff.
It appears that C. D. Smith, plaintiff’s decedent, made two inconsistent statements as to who was driving the automobile in which he was riding at the time he received his fatal injuries. Defendant claims that on the day of the accident Smith informed policeman Houston that he was driving the car. Policeman Nowitzky testified that some two days after the accident Smith told him Sears was driving the car. On the first trial the court admitted in evi*163dence both of the declarations claimed to have been made by Smith, but later it sustained a motion to set aside the first verdict on the ground that Smith’s statement to Nowitzky was a self-serving declaration and not admissible.
The proceedings of the trial now under review show that the trial court rejected or excluded from consideration of the jury both declarations, the one made-to Nowitzky on the ground that it was self-serving, and the one made to Houston on the ground that Smith was not in full possession of his mental faculties at the time that it is claimed he made the statement to Houston. I do not think that the trial court committed reversible error in either ruling.
The uncontradicted evidence clearly shows that Smith was injured at 9:20 a. m. At ten o’clock he was admitted to the hospital. One doctor for plaintiff, and one doctor for defendant, found that he was suffering from a fracture of both thigh bones, terrible bruises and lacerations, a broken nose, a fractured skull and concussion of the brain. Both of these doctors testified that he was semi-conscious and not in a mental condition to give intelligent answers to questions. Nowitzky, a witness called by defendant, testified that he tried to talk to Smith before Smith was taken out of the operating room and found him unconscious. “If he was not unconscious, I could not get much out of him at the time I talked to him that day.” He was in serious pain and groaning. As Nowitzky left the hospital he met officer Houston going in. Houston does not state whether he attempted to talk to Smith while he was still in the operating room or after he had been removed. At any rate, his interview with Smith took place before noon on the day of the accident and within a few minutes after Nowitzky had seen him. Houston does not attempt to quote the declaration he claims Smith made to him. His exact testimony was, “I talked to Smith. He was severely injured and I had some difficulty in talking to him as I had to ask a lot of questions. Of course he answered. I ascertained from him that he was driving the car.”
*164A conflict in the evidence on the question of whether Smith was rational and in possession of his mental faculties at the time would present a jury question, but it is to be noted that not a single witness testified that Smith, at the time Houston obtained the information from him, was in possession of his mental faculties. The admissibility of this testimony was peculiarly a question addressed to the sound discretion of the trial court. We should not disturb its ruling on it, unless it is clearly shown that there has been an abuse' of that discretion.
Under the circumstances, Smith, himself, would not have been a competent witness in any court. “It is too clear to call for discussion that liberty or property rights should not depend upon the testimony of those who are so wanting in understanding that they cannot remember or cannot form any conception of right and wrong.” Jones on Evid., 2d Ed., vol. 5, page 3947.
In Coleman v. Commonwealth, 25 Gratt. (66 Va.) 865, 874, 18 Am. Rep. 711, Judge Bohldin, speaking for the court, said: “There can be no doubt, that the rule laid down by Peake in his work on Evidence, and approved by the Court of Errors of New York in the case of Hartford v. Palmer, 16 John. R. 143, is sound and reasonable, and is one, as said by the court in that case, ‘which cannot fail to command the respect of all mankind’; to wit, ‘that all persons who are examined as witnesses must be fully possessed of their understanding; that is, such understanding as enables them to retain in memory the events of which they have been witnesses, and gives them a knowledge of right and wrong; that, therefore, idiots and lunatics, whilst under the influence of their malady, not possessing their share of understanding, are excluded.’
“ * * *. If at the time of his examination he has this share of understanding, he is competent. That is the test of competency, and of such competency the court is the judge; whilst the weight of testimony—the credit to be attached to it—is left to the jury.”
*165In State v. Berberick, 38 Mont. 423, 100 P. 209, the question was whether or not a confession made by a prisoner who was accused of murder was admissible. Counsel for the accused objected to the admission of the confession on the ground that at the time it was made the accused was not in possession of his mental faculties. It was held that, if the accused was not competent to testify at the time he made the confession, the confession itself was not relevant evidence against him, and that it was the duty of the court to ascertain the mental condition of the accused at the time he made the statement, and if it was found that he was not then in full possession of his mental faculties, the confession should be rejected.
Wigmore, in his valuable work on Evidence, vol. 1, 2d Ed., page 915, in discussing the competency of a witness says that the capacity of communication has two aspects:
“(1) First, it involves a capacity mentally to understand the nature of questions put and to form and communicate intelligent answers. (2) Secondly, does it involve a sense of moral responsibility, of the duty to make the narration correspond to the recollection and knowledge, i. e. to speak the truth as he sees it? It would seem that the clear absence of such a sense would disqualify the witness. * * * .
“If it is asked further what shall be the standard by which this capacity to observe, recollect, and communicate is to be judged, the law is found very properly declining to lay down any more detailed rules. The trial court must determine this capacity. Any more restricted rule, however ingenious, would fail of its purpose, and would hamper rather than assist the process of procuring trustworthy testimony.”
It is not claimed that Smith’s declaration to Houston is admissible, either as a dying declaration or as a part of the res gestae. If admissible at all, it is admissible as a declaration against interest. The theory, upon which an admission or declaration against interest is admitted, is, as was said in Burton v. Scott, 3 Rand. (24 Va.) 399, “the reasonable presumption, that no person will make any declaration against his interest, unless it be founded in truth.” If a person, at *166the time it was claimed that he made such a declaration against interest, is not in possession of his mental faculties as will enable him to understand the nature of the question or to intelligently formulate his answer, the presumption is removed and a declaration made under such circumstances has no probative value, and tends to confuse rather than aid the jury in determining the truth of the matter.
“It is well settled that evidence of verbal admissions ought to be received with great caution because of the liability of witnesses to mistake or misunderstand the admission when made, and to remember inaccurately or misrepresent it afterwards. Horner v. Speed, 2 Pat. & H. 616; 1 Green, on Evidence, sec. 200 (Redfield’s Ed.)
“If this be the rule where the verbal admission is to affect the party or person who made it, it ought to apply with greater force where it is to affect the rights of another.” Metropolitan Life Ins. Co. v. O’Grady, 115 Va. 830, 80 S. E. 743.
I think the evidence conclusively establishes the fact that Smith, at the time Houston questioned him, did not possess such an understanding as enabled him to retain in memory the events concerning which he was then questioned. But, if I am wrong in this conclusion, then it can not be gainsaid that the circumstances disclosed by this record, under which it is claimed Smith made the declaration to Houston, are such as to create serious and substantial doubt as to the probative value of anything that he may have said on that occasion.
There are some authorities which hold that an admission or declaration against interest does not render conflicting self-serving declarations admissible. There are a number of others that hold that, under such circumstances, self-serving declarations of a decedent are admissible. Under the facts of this case I think that if the declarations of the decedent made to Houston are admissible, then the inconsistent declarations of the decedent to Nowitzky should also be admitted, as it is conceded that his mental condition was then normal. This principle is supported by the following *167authorities: Gordon v. Munn, 87 Kan. 624, 125 P. 1, 88 Kan. 72, 127 P. 764, Ann. Cas. 1914A, 783; Cooper v. Bower, 78 Kan. 156, 96 P. 59; Cannon v. Baker, 97 S. C. 116, 81 S. E. 478.
We have said in a number of cases that “no record is perfect. This case has been twice tried and should not be retried unless justice plainly demands it.” Oliver v. Commonwealth, 151 Va. 533, 541, 145 S. E. 307; Woody v. Abrams, 160 Va. 683, 695, 169 S. E. 915; Parsons v. Commonwealth, 154 Va. 832, 152 S. E. 547; Waynick v. Walrond, 155 Va. 400, 154 S. E. 522.
One jury tried this case when the declaration against interest made to Smith and the inconsistent self-serving declaration made to Nowitzky were admitted for its consideration. That jury returned a verdict for plaintiff in the sum of $6,000. The jury on the second trial, with both declarations excluded from its consideration, returned a verdict for plaintiff in the sum of $8,500. There is ample evidence to support this verdict.
I am firm in my opinion that the judgment of the trial court should be sustained.