The judgment of this court, under our previous ruling, must necessarily be rendered against the appellant; but it is claimed by counsel for the sureties, that inasmuch as the judgment appealed from has been modified by this court, the sureties are discharged from liability.

The statute in regard to appeal bonds in appeals to this court is as follows: "Upon the appeal being made, the district court shall make an order allowing the same; such allowance shall stay the execution, * * * when the appellant, or some responsible person for him, together with two sufficient securities, to be approved by the court during the same term at which the judgment or decision appealed from was rendered, enters into a recognizance to the adverse party, in a sum sufficient to secure the debt, damages, and costs recovered by such judgment or decision, together with the interest that may grow thereon, and the costs and damages which may be recovered in the supreme court, conditioned that the appellant shall prosecute his appeal with due diligence, to a decision in the supreme court, and that if the judgment or decision appealed from be affirmed or the appeal be dismissed, he will perform the judgment of the district court, and that he will also pay the costs and damages that may be adjudged against him upon his appeal:" Prince's Stat. 68, sec. 4.

The condition of the appeal bond in this case is in compliance with the above statute on the subject, and in case of an affirmance of the judgment or a dismissal of the appeal, it covers not only payment of the judgment appealed from, but also all damages and costs that shall be adjudged against the appellant by this court.

The precise point on which the remittitur was permitted to be filed in this court was not raised in the court below. It is true, however, that there were general objections and exceptions to all the proceedings, including all the evidence adduced on the trial; but it is quite evident, from an examination of the record, that the gist of the defense was that there was no evidence to sustain a judgment in any amount whatever, and this also is the substantial ground of the appeal.

Neither was this question raised by counsel in this court. It was raised for the first time by this court on its own motion, which no doubt it might do in the exercise of its discretion in the furtherance of justice-the statute against entertaining any exception not taken in the court below being directory and permissive only. On the case as submitted, either of these modes of final disposition was open to us.

Under the statute that "no exception shall be taken in an appeal to any proceeding in the district court except such as shall have been expressly decided in that court," Prince's Stat. 68, sec. 5, we might have affirmed the entire judgment on that ground.

That the question as to the excessive interest was not raised in the court below or in any manner alluded to by either party, and was not therefore specifically ruled on, 6 Wall. 225, or the excessive interest being a matter of exact computation, we might have given judgment for the proper amount in this court under the following provision of the statute: "The supreme court, in appeals or writs of error, shall examine the record, and on the facts therein contained alone shall award a new trial, reverse or affirm the judgment of the circuit court, or give such other judgment as to them shall seem agreeable to law:" Prince's Stat. 69, sec. 7.

Or we could, as was done in this case, give to the appellees their option to file a remittitur covering the excessive interest, and have the judgment affirmed as to the residue, ortherwise to submit to a reversal and trial de novo.

Neither of these modes of disposition can be considered as a reversal so as to discharge the securities on the appeal bond, except on failure to file the remittitur.

Had the point as to excessive interest been raised in the court below, and overruled and excepted to, the case no doubt would have been viewed from a different standpoint; but that specific question not having been raised or ruled upon, the appeal can not be considered as having been taken to correct that irregularity. It may be fairly presumed that had the point been raised the irregularity would have been promptly corrected in the court below. The cases of Rothgerber et al. v. Wanderly, 66 Ill. 390, and Chase v. Ries et al., 10 Cal. 517, are much relied on by the sureties in this appeal bond, as authority showing their exemption from liability, but in each of those cases the judgment appealed from was actually reversed and remanded to the court below, with instructions to enter a different judgment.

In the case at bar there is no such reversal and remanding for a different judgment. The judgment of this court, upon our previous ruling, should affirm the judgment below, after deducting therefrom the amount of the remittitur filed, as aforesaid, and that the appellees recover of the appellant and his securities named in his appeal bond the specified amount of such residue and their costs, and that they have execution therefor. AXTELL, C. J., concurred.

TERRITORY, etc., v. DURAN ET AL.

Filed February, 1884.

DEAF AND DUMB WITNESS-COMPETENCY OF.-A deaf and dumb child, about nine years of age, who has no idea of the nature or sanctity of an oath, and who can not be made to understand questions asked him, is not competent as a witness.

APPEAL from a judgment of the district court for Grant county, convicting the defendants of murder. The opinion states the facts.

No appearance for the appellants.

William Breeden, for the territory.

BELL, J. The defendants in the court below, and appellants here, were indicted, tried, and convicted of the crime of murder in the 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 Chinaman by the name of Wy Poi, alleged to have been killed by them on the third day of February, 1833, 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, 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 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: "Q. 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. "A. I can not make him understand.

"Q. You say you can not make him understand? A. No, sir; I can not; he has the idea of the murder fixed in his mind, and he wants to tell that.

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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 can not 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, he 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 strength, 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 things and events which he has not seen can not 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 all 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 should 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: " Q. Can you communicate with him now, so as to find out from him what he was doing there?"-Meaning at the place where the murder took place. "A. No, sir; I can not. 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 can not 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 cases the accused has the 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 crossexamination.

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 fully interpret either 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 except 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 had 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 can not 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 man has not:" 1 Bishop's Cr. Proc., sec. 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., sec. 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., concurred.

BRISTOL, J., dissenting. The appellants, Abel Duran and Aurelio. Lora, were indicted jointly with Carlos Chaves for the crime of murder in the first degree. Chaves having been tried separately and convicted, Duran and Lora were afterwards, but at the same term, jointly tried, convicted, and sentenced to be executed. This case is here on appeal. This court having rendered its decision reversing the judgment and remanding the cause for a new trial, I dissent therefrom, for the reasons herein stated.

The learned judge, in rendering the opinion of this court, quoted only so much of the evidence relating to the competency of the deaf and dumb boy as a witness as relates to the inability of his mother as an interpreter of his gestures and signs to communicate to him any question that he could comprehend touching his understanding of the obligation of an oath or the consequences to him in case he should utter a falsehood.