The opinion
Preston, J.
(Dissenting). I dissent as to that part of the opinion holding that the declarations and confession of Von Kutzlaben are competent.
Though insane, a person may be a competent witness if he has sufficient capacity to understand the obligation of an oath. 7 Encyc. of Evidence, p. 479; Code Section 4601. Suppose on the next trial of this case, Von Kutzlaben, though insane, is produced in court and placed upon the stand; upon preliminary examination as to his competency, it appears that he is competent to understand the obligation of an oath, but declines to testify, because if he does so it would incriminate him. Under the opinion as written, his declarations and confession would be admissible. In such case, he is not as one dead. The defendant is prevented from obtaining the benefit of his evidence, not because of his insanity, but because he hi alms his privilege. Wherein is this different from a living and sane witness refusing to answer for the same reason? In either case, the reason his evidence may not be obtainéd is the fact that he claims his privilege, so that the mere fact of insanity could not render the evidence of declarations competent. It may be that, the opinion is not susceptible of such a construction, but I think it is. If the holding of the opinion *404 was squarely that permanent and confirmed insanity to such a degree renders the witness incompetent to comprehend the nature of an oath, and for that reason and because of his insanity, he could be placed upon the same basis as one dead, then there would be some reason for opening the door for the admission of such hearsay testimony. But I do not understand the opinion to go that far. If it does, then, in my opinion, the evidence does not show that Yon Kutzlaben was in such a condition, or that he was afflicted with that degree of insanity. To my mind, the insanity shown here is no more than the usual insanity interposed as a defense in criminal cases. In fact, the defendant was claiming to be insane at the time of the derailment of the train with which he was charged. The defendant sought to take his testimony after that date, and the so-called confession was made after that date. Even after he was adjudged insane, he was discharged or released, and there is no sufficient showing that he was not mentally competent to testify.
There are other reasons than 'those that I have given. I am not disposed to take the time and attempt to fully cover the subject, because the ease has been pending for a long time. It is desirable that the ease be not longer delayed. In my opinion, the evidence is hearsay, and therefore incompetent. I would not be disposed to open the door any wider for the admission of hearsay testimony. If it is done now, the next step will be to still widen the door to admit declarations of a person whose evidence may not be obtainable because of illness or absence.
I dissent also from that part of the holding in the majority opinion that it is competent for witnesses to testify that marks were made by a crowbar. It is a matter, I think, that the jury could know as much about as the witnesses. It would be proper for the witnesses to describe the marks. If qualified as experts, they could doubtless give their opinion that such marks could have been made by a crowbar, but I think they should not be permitted to say that they were so made. State *405 v. Rainsbarger, 74 Iowa, at 204; Sever v. Minneapolis & St. L. R. Co., 156 Iowa 664 and cases; 5 Encyc. of Evidence, 662; Lawson, Expert and Opinion Evidence, 557 et seq. and 571; Cook v. Johnston, 58 Mich. 437 ; Riley v. State, 88 Ala. 193 ; Fireman’s Insurance Co. v. Mohlman, 91 Fed. 85 .
Furthermore, witness had already testified without objection that the marks were so made and where they were. I think that there was no prejudice in sustaining objections to like questions on the same subject.
I would affirm.