“Pennington had sufficient intelligence to comprehend the enormity of the deed, but, susceptible to suggestion in exaggerated degree, he had not sufficient inhibition to resist the volitional act.
“Early recognition of his mental defect and separation would have protected him alike from tempter and temptation.”
It is unfortunate that Dr. Barr did not testify in the case, but his assistant did testify and was understood to express Dr. Barr’s views.
It was unfortunate, indeed, that men who really knew so little about the type of case before them were allowed to pass as experts and their opinion allowed to carry more weight with the jury than the opinion of those who have spent years in intimate association and study of the problem of high-grade imbecility. It should be recognized that there are very few persons who are expert with this type. The superintendents of our institutions for the feeble-minded, after a few years of experience, have a knowledge of this matter which far surpasses that of any physician who has not had institution experience, however great a specialist he may be in nerve diseases, in insanity or epilepsy. It is not enough to find out that a physician has had some experience with imbeciles. The real problem is: Has he had experience with this high-grade type? Is he able to pick them out? Is his knowledge as well as his experience confined to the medium and low grades, which every one meets? Failure to make this distinction had much to do with the verdict in the case of Pennington.
Another element in the result was the failure to make clear to the jury the precise situation, the real point at issue. The defense in the case had no desire to free Roland Pennington from all the consequences of his deed. It was not a case of the electric chair or freedom. The imbecile, especially one who has shown the tendency toward crime or willingness to be led into crime, should never be at large where it is possible for him again to go wrong. On the other hand, it is abhorrent to think of a child (in mind) going to the electric chair for the deed which he committed while under the influence of a superior intelligence, or while impelled by the hidden forces of his nature over which he had no control on account of his weak mind. It should have been made very clear to the jury that what was wanted was to save the commonwealth the shame of officially putting to death a person who had only a child’s intelligence. In an ideal state such a person should doubtless be kept in an institution for the feeble-minded under a life commitment, unless his impulses are such that he proves to be dangerous to the other inmates, in which case a different kind of institution should be provided. Until we arrive at a condition where we treat such persons ideally, one cannot object to the state prison for life for the imbecile manslayer. This, unfortunately, was not made very clear to the jury, and it seems probable that many of them thought that their verdict was either to condemn him to the electric chair or to set him free. Having only these alternatives, one can perhaps understand their decision.[2]
Another somewhat nice legal point was involved and brings up a matter which calls for some discussion. As already stated, March had been convicted largely upon the testimony of his accomplice, Roland Pennington. If now the jury should acquit Roland Pennington on the ground of imbecility, what would be the effect of such a decision upon Pennington’s testimony against March. Every one felt that March was guilty and consciously guilty and should be punished to the extent of the law. To bring in a verdict in the case of Pennington which would result in annulling his testimony and thereby taking away the one sure means of convicting March, was a serious matter. One may well believe that the jury felt that it was safest to convict Pennington of murder in the first degree and thus avoid raising this confusing question.
As a matter of fact, although the question would undoubtedly have been raised and attempts made to free March on the basis of Pennington’s feeble-minded testimony, yet such a procedure would not have been warranted.
Pennington, as we have claimed, is an imbecile with a mentality of about eleven years. We have a right to judge him largely on the basis of an eleven-year-old child. The testimony of eleven-year-old children is often admitted into court, and many a person has been convicted on such testimony. It is true that it is a somewhat moot question as to how much credence should be placed in children’s testimony. The real criterion in such cases is the nature of the child, a matter which we have already considered. A child may testify to simple facts, and may be relied upon where he has no particular interest, where there cannot be shown any tendency or desire on the part of the child to show off or to say something for effect or to exercise childish imagination and invent a large story for the sake of the pleasing sound.
It is perfectly clear to any one who studies the confession of Pennington that he must have told a straight-forward story. As already stated, he would not have incriminated himself as he did if he had been falsifying. He is not the type of person that runs on in an imaginary tale without regard to the facts. In short, his testimony bears every evidence of being entirely credible.
On the other hand, as already pointed out, Gianini’s testimony is unreliable, because he was talking for effect. He is of the type that loves show and notoriety. His testimony was only to be trusted where it could be corroborated by facts or the testimony of others.