the prosecution falls. Thus if he surrendered his property in the goods which were taken from him, he cannot maintain larceny ; if he left his house door open, he cannot maintain burglary; if he implicitly permitted the defendant to write his name, he cannot maintain forgery; if he consented to be robbed in order to prosecute the robber, he cannot maintain robbery ;o but if on the other hand he simply left marked property in such a position that if stolen it could be identified; or if, while keeping his door fastened, he put out the lights, and collected a party of armed friends to seize the expected burglar; or if he sent a detective, under disguise of an accomplice, to obtain counterfeit money from the counterfeiter; here the existence of these traps form no defence. Secondly, did the prosecutor inveigle the defendant to the commission of the offence? This, in cases in which, as in rape and larceny, the act, to be indictable, must be against the prosecutor's will, brings up the question heretofore discussed, whether the prosecutor, by such inveigling, consented to the act. If so, these particular forms of prosecutions cannot be maintained. But when the offence is against the public, and is independent of the question of the prosecutor's consent, as in riot, treason, nuisance, &c., then although the inveigler may make himself criminally responsible (in felonies as accessary before the fact, in misdemeanors as principal), yet this does not relieve the person inveigled from penal responsibility. The question of inveiglement goes not to the fact of guilt, but to the degree of punishment. § 751 j. Burden on defence. As a rule, the burden of setting up an estoppel by consent, as a defence, is on the defendant.p o R. v. Fuller, R. & R. 408. Post, § 1700, 1702. p State v. Whittier, 21 Me. 341; Welsh v. State, 11 Texas, 368. 709 § 752. IT was once thought that an idiot is inadmissible; l and so of a lunatic.m It is now settled, however, that in all cases either lunatic or idiot may be received, if in the discretion of the court he appears to have sufficient understanding to apprehend the obligation of an oath, and to be capable of giving a correct answer to the questions put.n The question of competency is to be determined by the judge trying the case, upon the examination of the witness himself, or upon the testimony of third persons. o 7 Co. Litt. 6 b; Gilb. Ev. 144. m Ibid.; see Armstrong v. Timmons, 3 Harring. 342; Evans v. Hittich, 7 Wheaton, 453; Robinson v. Dana, 16 Ver. 474. n R. v. Hill, 5 Cox C. C. 259; 2 Den. C. C. 254; 5 Eng. Law & Eq. 547; Campbell v. State, 23 Alab. 44; Holcomb v. Holcomb, 28 Conn. 177; Fennel v. Tait, 1 C. M. & R. 584; 3 D. P. C. 161; Spittal v. Walton, 40 L. J. (N. S.) Chanc. 368; Com. v. Reynolds, cited 10 Allen, 64; Kendall v. May, 10 Allen, 59; see Livingston v. Kiersted, 10 Johns. 362; 1 W. & S. Med. Jur. § 242, for other cases, and see an able note in 2 Heard's Lead. Cas. 20. o R. v. Hill, 5 Cox C. C. 259; 2 Den. C. C. 254; 5 Eng. Law & Eq. 547. 2. Intoxicated and Etherized Persons. § 753. Intoxication, when established to the satisfaction of the court, which may be done by their own inspection, is a ground of exclusion.p It would seem, however, that where the issue requires it, the court will adjourn the case so as to enable the testimony of the witness to be secured. The credibility of a person who was intoxicated at the time of the occurrence is for the jury; and so of persons who at such period were under the influence of ether, p1 or who were asleep.p2 In this case, a lunatic patient, who had been in confinement in a lunatic asylum, and who labored under the delusion, both at the time of the transaction and of the trial, that he was possessed by 20,000 spirits, but whom the medical witness believed to be capable of giving an account of any transaction that happened before his eyes, and who appeared to understand the obligation of an oath, and to believe in future rewards and punishments, was called as a witness on a trial for manslaughter: It was held, that his testimony was properly received in evidence; and that where a person under an insaue delusion is called as a witness, it is for the judge, at the time, to say whether he is competent to be a witness, and it is for the jury to judge of the credit that is to be given to his testimony. If upon his examination upon the voir dire, he exhibits a knowledge of the religious nature of an oath, it is a ground of his admission. Ibid. In Vermont the right to examine him on voir dire has been refused; Robertson v. Dana, 16 Vt. 474; but this cannot be sustained. As to nature of testimony to prove insanity, see ante, § 51-2-3-4, 5, &c. If the judge has admitted a witness to give evidence, but upon proof of subsequent facts affecting the capacity of the witness and of observations of his subsequent demeanor, the judge changes his opinion as to his competency, the judge may stop the examination of the witness, strike his evidence out of the notes, and direct the jury to consider the case exclusively with reference to the evidence of the other witnesses. R. v. Whitehead, 1 L. R. C. C. 33; 35 L. J. M. C. 186; 14 W. R. 677. p Hartford v. Palmer, 16 Johns. 143; Gould v. Crawford, 2 Barr, 89 ; State v. Underwood, 6 Iredell, 96. pl 1 Wh. & St. Med. Jur. § 245; 2 Ibid. § 245, 268-9. p2 1 Wh. & St. Med. Jur. § 789. An instance of the renewal in sleep of an impression of memory, calling up an apparition to enforce it (it is the impression which causes the apparition, not the apparition which conveys the impression), occurred near Bath half a century ago, and is related by Miss Cobbe, in an article on "Unconscious Cerebration," in the number of Macmillan's Magazine, for Feb. 1873. Sir John Miller, a very wealthy gentleman, died, leaving no children. His widow had always understood that she was to have the use of his house for her life, with a very large jointure; but no will making such a provision could be found after his death. The heir-at-law, a distant connection, naturally claimed his rights, but kindly allowed Lady Miller to remain six months in the house 3. Deaf and Dumb Persons. § 754. A person who is deaf and dumb merely, is not incompetent if otherwise capable; and he may be examined through the medium of a sworn interpreter who understands his signs. q If, however, he be able to express himself more clearly in writing, that medium will be required as the most accurate and the most satisfactory.r He should be examined through the medium he can best understand. rl 4. Infants. § 755. An infant of any age may be a witness, provided such infant appear sufficiently to understand the nature and moral obligation of an oath; for competency is held to depend not upon age, but understanding. 8 In this country, the testimony to complete her search for the missing papers. The six months drew at last to a close, and the poor widow had spent fruitless days and weeks in examining every possible place of deposit for the lost document, till at last she came to the conclusion that her memory must have deceived her, and that her husband could have made no such promise, as she supposed, or have neglected to fulfil it, had he made one. The very last day of the tenure of the house had just dawned, when, in the gray of the morning, Lady Miller drove up to the door of her man of business in Bath, and rushed excitedly to his bedroom door, calling out, "Come to me! I have seen Sir John! There is a will." The lawyer hastened to accompany her to her house. All she could tell him was that her deceased husband had appeared to her in the night, standing by her bedside, and had said solemnly, “There is a will." Where it was, remained as uncertain as before. Once more the house was searched in vain, from cellar to loft, till finally, wearied and in despair, the lady and her friend found themselves in a garret at the top of the house. "It is all over," Lady Miller said: "I give it up; my husband deceived me, and I am ruined!" At that moment she looked at the table over which she was leaning and weeping. "This table was in his study once. Let us examine it." They looked, and the missing will, duly signed and sealed, was within it, and the widow was rich to the end of her days. It needs no conjuror to explain how her anxiety called up the myth of Sir John Miller's apparition, and made him say precisely what he had once before really said to her, but of which the memory had waxed faint. R. v. Ruston, 1 Leach, 408; R. v. Wade, 1 Mood. C. C. 86; Snyder v. Nations, 5 Blackf. 295; Com. v. Hill, 14 Mass. 207; State v. De Wolf, 8 Connect. 93; People v. McGee, 1 Denio, 19; see 1 Wh. & Stillé Med. Jur. § 95, 461. r Morrison v. Lennard, 3 C & P. 127. r1 Ibid. s R. v. Powell, 1 Leach, 110; R. v. Brasier, Ibid. 199; R. v. Williams, 7 C. & P. 320; 2 Hale, 278, 284; R. v. Travers, Str. 700; 1 Greenl. on Ev. § 366; State v. De Wolf, 8 Conn. of an infant of seven years, corroborated by circumstances, has been held sufficient to justify a conviction of a capital offence. The credibility of such witness is properly left to the jury.t But in several instances the evidence of a child of four years has been rejected. u Where, on an indictment for rape, a child offered as a witness is of sufficient age, though weak understanding, but is unable to talk, and can communicate and receive ideas only by signs, she may be sworn as a witness, and examined through the medium of a person who can understand her, who is to be sworn to interpret between her and the court and jury. v The question of admissibility is of course to be referred to the discretion of the court. vl "If the child, of how tender age soever," says Mr. Justice Talfourd, w "comprehends the difference between truth and falsehood, and believes that falsehood is a crime, and will be punished by God in a future state, he may be sworn and examined; whereas, if he has no such sense, though of an age when such knowledge might reasonably be expected, he cannot be sworn." In cases of great importance, where a child, who is a necessary witness to support the charge, is found unfit to give evidence from the mere absence of instruction, a judge will sometimes postpone the trial till the next assizes, in order that the child may be properly taught in the interval. y When, however, in a case of carnally knowing a girl under ten years, it appeared, on application on part of the prosecution to postpone the trial, that the girl was only six years old, and by reason of her age quite incompetent to take an oath, Pollock, C. B., said: "I have great doubts as to the course you propose, C. C. 135; Com. v. Lattin, 29 Conn. 389. 98; Com. v. Hill, 14 Mass. 207; Jackson v. Gridley, 18 Johns. 98; State v. Morea, 2 Ala. 275; State v. Denis, 19 La. An. 119; Flanagin v. State, 25 Ark. 92; Warner v. State, Ibid. 447; Com. v. Carey, 2 Brewster, 404; 2 Russ. on Cr. 969. See as to the Ohio limit of ten years, act of Feb. 14, 1859, § 1. t Com. v. Hutchinson, 10 Mass. 225; State v. Le Blanc, 3 Brevard, 339; State v. Whittier, 21 Maine (8) Shep.), 341; Reg. v. Perkins, 2 Mood. u R. v. Pike, 3 C. & P. 598; People v. M'Nair, 21 Wend. 608; R. v. Brazier, 1 East P. C. 443. v People v. McGee, 1 Denio, 19. Ante, § 754. vl Com. v. Mullins, 2 Allen, 295. w Dickins. Q. S. 6th ed. 533. x 1 Stark. Ev. 2d ed. 93; 2 Ibid. 407; 1 Leach, 237, Brazier's case. y See note to R. v. White, 1 Leach, 430. |