CHAPTER XXI.

SIMULATED SOMNAMBULISM.

§ 298. This disorder may be simulated, first, by those who have, at other times, really experienced its attacks ; secondly, by those who have not at any time. The motive may be, either to do something which the individual would not otherwise dare to attempt, or to avoid the punishment of an action, which is alleged to have been committed in one of its paroxysms. The difference, however, in the difficulty of proof, is not so great, as at first sight might be apprehended; for, since the mind is generally unconscious of what passes during the paroxysm, the somnambulist possesses but little advantage over others, from his experience, in feigning this affection. He will be no less at fault in respect to those little traits, which mark the difference between the real and feigned attacks, as well as the more important phenomena. When, however, it is admitted that the person has been subject to its attacks, this fact certainly furnishes a presumption of its reality in doubtful cases, which diminishes the strength of the evidence which the alleged case requires.

§ 299. When the feigned paroxysm is witnessed by others who are capable of describing minutely what they saw, a comparison of his conversation and acts with those observed in the real paroxysms, may furnish us with a clew to the real nature of the act imputed to him ; for it is scarcely possible that, if feigning, he will not be caught tripping in some of his mamEU vres. A curious case is quoted by Hoffbauer from an old writer, where nothing wa3 wanting but a tolerable knowledge of the state of the mental faculties in somnambulism, to expose the deception. An old ropemaker frequently fell into a profound sleep in the midst of his occupation, whether sitting, or standing, or walking in the street, when he would begin to repeat, by means of words and gestures, every thing he had been doing during the day, from his prayer in the morning till the very moment of his falling asleep. If taken while walking abroad, he would pursue his course just as if he had been awake, avoiding persons and things which might harm him. The story was related as one of genuine somnambulism, though there were two circumstances in it sufficient to have exposed the deception. In the first place, to repeat the transactions of the day in this manner, is contrary to what we know of somnambulists, who do only what they have premeditated, or what has strongly engaged their attention. Secondly, this man acted a double part,—those of the sleeping and of the waking states,—without making the proper distinction. He first repeated what he had done during the day, and then went on with what he was in the act of doing when the paroxysm took him. The ruse was finally discovered. The man professed himself cured, as soon as a physician charged with examining his case proposed to bandage his eyes, to see if he would then be able to perform those actions, which had excited so much surprise. No doubt can remain of the genuineness of the attack, if the person performs feats which he Would not dare to do when awake, unless—which would hardly be possible—he has systematically concealed his skill and abilities; the converse of the proposition, however, cannot be equally true. It will also be a strong confirmation of the evidence in favor of its reality, if the physical symptoms, we have mentioned as sometimes attending the somnambulic disposition (§ 293), are shown to have been present. But it generally happens that the somnambulist walks unwitnessed, and must rest the proof of his mental condition on his own testimony and the circumstances of the case. The full burden of proof manifestly devolves on him, and if he fail of establishing it satisfactorily, he must suffer the consequence. There can be no other rule, for once acquit a criminal on the score of somnambulism, which is imperfectly or at best but plausibly proved, and it will soon become a favorite excuse for crime, whenever the offender possesses the requisite address for maintaining the deception. Among the proofs, however, necessary to establish this defence, a prominent place should be claimed for those drawn from the nature of the criminal act itself. If this be manifestly contrary to the known character and disposition of the accused, and especially if it can be shown that he could have entertained no motive for injuring the other party, but little else beyond a straight story and an air of sincerity ought to be required to establish the truth of his own assertions. CHAPTER XXII.

EFFECT OF INSANITY ON EVIDENCE.

§ 300. The insane are disqualified by law' from appearing as witnesses in courts of justice, their incompetence being inferred from their mental unsoundness. The fact of incompetence to testify, however, is not necessarily connected with that of insanity, and it would be far more correct to consider the former an independent fact to be established by a distinct order of proofs. The truth is, an analogy, in a medico-legal sense, has been too hastily assumed, between the act of testifying, and that of performing business-contracts, or other civil acts, and in consequence, has shared with them in the same sentence of disqualification, without an attempt to ascertain the kind and degree of intellectual power which they respectively require. The practice of including them in the same category, is certainly not favored by the present state of our knowledge of insanity, nor does it approve itself to the common sense of mankind. To see what foundation in nature this rule of law really has, we shall proceed to inquire how far the competency of a witness is actually impaired by the different forms of insanity.

1 3 Thomas's Coke's Littleton, 489; Livingston v. Kiersted, 10 Johnson's Reports, 362.

AA

§ 301. According to Hoffbauer, before a witness can be deemed competent, it is necessary that his senses should be sufficiently sound to take cognizance of the facts to which he testifies; that their impressions should have been really what he believes they were; that his testimony should coincide with his belief; and lastly, that he should be able to convey to others his own ideas without fear of being misinterpreted. These conditions, it may be added, constitute the capacity of a witness, and wherever they are present, his evidence should be received without agitating the question of his mental unsoundness, which is not absolutely incompatible with their exist

ence.1

§ 302. The higher degrees of imbecility must of course disqualify a witness, but its less aggravated forms may not, under all circumstances, have this effect. His senses may be acute enough to see and to hear what he deposes to ; no illusions may obtrude and mingle with their impressions; and his memory may be retentive enough, provided too long a space of time do not intervene between the occurrence of the facts and his deposition concerning them, to bear them in mind till relieved by judicial investigation. The facts to which he testifies must be of the simplest kind, requiring the smallest perceptive effort to seize and appreciate, and so intelligible to