Careful study of the testimony and the nature and the character of the child will almost always enable one to decide very accurately as to how much credence is to be placed in the evidence. In other words, the fact of high-grade imbecility does not of itself make the child’s testimony acceptable or non-acceptable. It must be judged on its merits. We have in these two cases excellent examples of the trustworthy and untrustworthy.
The testimony of Pennington at the March trial was a most marvelous performance. To those unfamiliar with high-grade imbecility, it was almost unexplainable. Many thought that he must have been very carefully and elaborately coached; that he had been told just what to say, and had learned his lesson well. Those, however, who know the imbecile understood perfectly what was happening. This eleven-year-old boy was telling a plain, unelaborated tale. He was not intelligent enough to try to escape himself, and so he had nothing to hide and, consequently, got into no confusion. He answered, “Yes,” “No,” or, “I don’t know” with a wisdom and a consistency that was simply amazing, and, as said, could only be explained on the understanding that he was telling the truth. No amount of cross-examination confused him, no sudden coups of the lawyer for the defense could entrap him. For example, when asked with considerable heat on the part of the attorney why he had forgotten a certain point while he remembered very vividly a certain other point, the witness made no attempt to explain; simply remarked that he did not know. In truth, he did not know. Any such psychological matter was as far beyond him as the heavens. Without imagination, without ability to reason out the effect of his answer on his own future, he could simply answer in the plainest kind of “Yes” or “No” as he knew the facts.
With these considerations, we pass on to consider the larger and more difficult problem, “Can an imbecile of the mentality of eleven years know the nature and quality of his acts and understand that it is wrong?”
CHAPTER V
RESPONSIBILITY
All students of the psychology of childhood agree that not until the dawn of adolescence does reasoning as such begin to show itself in the child mind; that judgment and foresight and self-control, such as enable a person to counteract his natural impulses and make himself fit into the conventions of society, are practically unknown previous to this age. It is true that many children are taught to say what the adult alone can feel in connection with such matters. But as for having the real feeling and the understanding of the situation, we seem to have no right to expect it before the beginning of this adolescent period, from twelve to fifteen years of age. Everything points to the correctness of the conclusion that during this early period of pre-adolescence the child is a creature of impulse and instinct and is controlled largely by counteracting one instinct by another. For example, the instinct to love and obey a parent impels the child to do what that parent says, when he tells him not to yield to some impulse which would lead him into trouble according to the canons of modern society. Without going further into a discussion of the point, which would necessarily lead to many philosophical considerations, the writer may express his conviction, born of a study both of normal children and also of mental defectives of twelve years and under in mentality, that persons of this mentality do not know much about right and wrong. They act upon impulse and upon instinct, without very much thought. Even the child of the best opportunity and the most elaborate training in a good home may quite likely not know the wrongfulness of an act of homicide in the sense of having a real feeling of that wrong. He can doubtless, as already stated, say that the thing is wrong, because he has learned that this is the right thing to say.
Let us turn now to the other part of the legal phrase, “Does such a person know the nature and quality of his act?” If the writer understands these terms, the first may be translated into the expression, “Does he know what he is doing?” We take it that the expression originated in the attempt to cover those cases where persons, either momentarily or permanently deranged, literally do not know what they are doing. If this is correct, then one cannot, as a rule, say that a high-grade imbecile does not know what he is doing. He is not like the lunatic who acts blindly and is probably no more responsible for his acts than a person walking in his sleep. The imbecile is not in this condition. He has, so to speak, full possession of all the mind that he has ever had and that, in the case of these high-grade imbeciles or morons, is certainly sufficient to enable him to know what he is doing. In the case of Jean Gianini, the writer testified that in his opinion he knew what he was doing. He knew the nature of his act. One cannot speak, it is true, with certainty in such cases. It is entirely possible that, as already intimated, the situation at first may have been a simple altercation or discussion which finally got to a point where the anger of the boy was aroused to such an extent that he acted without really knowing what he was doing. However, there is no more argument for that theory than against it, and without definite evidence on the question it is probably going too far afield to make any such claims of immunity on that ground. We are frank to admit that the probabilities are high that the boy knew the nature of his act. Did he know the quality of his act?
By the quality of a thing is meant that which distinguishes it from all other things. This implies a complete and extensive knowledge of the thing in question. To know the quality of an act—murder, for example—means to know all of the elements, forms, or modes of being or action which seem to make it distinct from all other acts. To know the quality of an act of murder is to know that it is unjustifiable; it is to know that it differs from the killing of a rat in that different consequences follow; that human suffering is involved, both that of the victim and of the victim’s friends and associates. It is to know, at least in some vague way, that human society could not exist if murder were the rule. To know the quality of an act of murder is to know enough to be able to distinguish it from justifiable homicide, from killing in war, not to mention more obvious necessary distinctions.