Attorney General and J. M. Clancey, assistant attorney gen eral, for the plaintiff. S. S. Hamilton, for the defendant. 182 NEWMAN, J. It seems to be the settled law that, after four years of age, a child is not incompetent to testify as a witness by reason of any rule of law which excludes him. Whether a child above that age is competent to testify depends upon his intelligence, which is to be determined by the trial court by examination of the child in court. The question is addressed to the discretion of the trial court. Its determination on such examination is final, except in a clear case of the abuse of its discretion. "It may be regarded as well settle that whenever there is intelligence enough to observe and to narrate, there a child (a due sense of the obligation of an oath being shown) can be admitted to testify": 1 Wharton on Evidence, 3d ed., sec. 398. "Age, at least after four years are past, does not touch competency; and the question is one of intelligence, which, whenever a doubt arises, the court will determine to its own satisfaction by examining the infant on his knowledge of the obligation of an oath, and the religious and secular penalties for perjury": 1 Wharton on Evidence, sec. 399. "It will require a strong case to sustain a reversal of the ruling of the court examining such a witness": 1 Wharton on Evidence, sec. 400. See cases cited in the brief of the attorney general. Also, State v. Morea, 2 Ala. 275; Wade v. State, 50 Ala. 164; Blackwell v. State, 11 Ind. 196; State v. Denis, 19 La. Ann. 119; People v. Bernal, 10 Cal. 66; State v. Whittier, 21 Me. 341; 38 Am. Dec. 272; State v. Le Blanc, 3 Brev. 339; State v. Jackson, 9 Or. 457. Whether the trial court determined rightly the questions of the competency of the witness is not presented here. That is a question of fact. 183 Only questions of law are to be reported, under the statute, or considered by this court: State v. Gross, 62 Wis. 41; State v. Cornhauser, 74 Wis. 42. The court, being satisfied of the competency of the witness, did not err in permitting her to testify in the case. 2. Ordinarily the testimony of one competent witness is sufficient to sustain a conviction. There are crimes for which it is not competent to convict upon the uncorroborated testimony of one witness. These are exceptions from the general rule, created either by statute or some established rule of the common law. Except in these excepted cases the testimony of one witness answers at law. Even the testimony of an accomplice is sufficient (Black v. State, 59 Wis. 471), and that even in a capital case: United States v. Neverson, 1 Mackey, 152; United States v. Bicksler, 1 Mackey, 341. The weight of the evidence is for the jury. If they are satisfied by it beyond a reasonable doubt, it is legally sufficient. Even in cases of rape there is no inflexible rule which requires corroboration of the complainant's testimony. Such corroboration is expected, and its absence seriously impairs the case of the prosecution. But the law itself is satisfied with such corroboration as is practically procurable; else many crimes could be perpetrated with impunity: 1 Wharton's Criminal Law, 9th ed., sec. 565. It is, to a great extent, in the discretion of the trial court, in most cases, whether corroboration shall be required, and how much: Ingalls v. State, 48 Wis. 649; Black v. State, 59 Wis. 471. Under the direction of the court an intelligent jury are not likely to err in giving undue credit and force to the testimony. If that should happen it is always within the power of the court to correct such a mistake by a new trial. It appears by the report that there was some corroboration of the principal witness. Whether the whole evidence supports the conviction cannot be answered here: State v. Gross, 62 Wis. 41. The court being satisfied by its 184 examination that the witness was competent to testify, and that practically all the corroborative testimony which was practically procurable had been produced, and being satisfied of the truth of the verdict, the conviction is lawful, and should be sustained. 3. The act alleged against the defendant is an act of "open and gross lewdness," within the meaning of the stat ute. The statute punishes not public, but open, lewdness. The phrase "open and gross lewdness" is not equivalent to the phrase "gross lewdness in an open place." The word "open" has no reference to place at all, nor to number of people. It is used simply to define a quality of the act of lewdness. It is "open lewdness" as opposed to "secret" lewdness. It defines the same act, regardless whether it is committed in presence of one or of many. The offense may be committed by the intentional act of exposing one's person indecently in the presence of one person, to whom it is offensive, as well as in the presence of many persons. It could not change the quality of the act that it was committed in the presence of a child of tender years, too innocent to be offended by it. The benignity of the law would neither presume nor permit the consent of such a child to such an act: Fowler v. State, 5 Day, 81; Grisham v. State, 2 Yerg. 589; State v. Millard, 18 Vt. 574; 46 Am. Dec. 170; Commonwealth v. Wardell, 128 Mass. 52; 35 Am. Rep. 357. By the COURT. The first question is answered in the neg ative. The second and third questions are answered in the affirmative. It will be so certified to the circuit court. WITNESSES-CHILDREN.-The competency of a child as a witness depends apon its intelligence, its power to distinguish between good and evil, and its moral comprehension of the obligations of an oath: See note to McGuf v. State, 16 Am. St. Rep. 31. These matters must, of course, be deter mined from the court's examination of the witness. The trial may be postponed to enable the child to be instructed as to the nature of an oath: Tay lor v. State, 22 Tex. App. 529; 58 Am. Rep. 656, and note. INDECENT EXPOSURE.-Exposure by a man of his private parts to one woman only, with solicitation of sexual intercourse, is "open and gross lewdness and lascivious behavior," for which an indictment will lie: State v. Millard, 18 Vt. 543; 46 Am. Dec. 170. So is indecent exposure of his person by a man in a house to a girl eleven years old: Commonwealth v. Wardell, 128 Mass. 52; 35Am. Rep. 357. CITY NAT. BANK OF DAYTON, OHIO, v. KUSWorm. [88 WISCONSIN, 188.] NEGOTIABLE INStruments-DefeNSES.-The maker of a promissory note cannot avoid payment thereof on the ground that it was given to com. pound a felony. NEGOTIABLE INSTRUMENTS-DURESS AS A DEFENSE.-The defense of duress is not, as a general rule, available in an action upon a promissory note given to prevent the prosecution of another person; but one exception to this rule is, that a wife may avoid her note made under duress of threats of criminal prosecution against her husband, as it is for that reason void. TO CONSTITUTE AN ESTOPPEL IN PAIS some thing must be said or done by the person estopped. The independent act of another person, even though such other person is her husband, cannot create such an estoppel. Ir ▲ Loss MUST BE BORNE BY ONE OF TWO Innocent Persons, it shall be borne by him who occasioned it. DURESS-DISAFFIRMANCE OF CONTRACT WITHOUT RESTORATION OF CONSID ERATION.-A wife may avoid her contract for duress without any reference to formal restoration if she has received no benefit, as there is nothing to restore. Hence, if, under duress of threats of criminal prosecution of her husband on the charge of forging notes deposited as collateral security for his own notes to a bank, a wife gives her note to the bank for the amount of her husband's notes, and the cashier of the bank delivers the husband's notes and the collaterals to a friend of the wife, who immediately hands them to her, with the request for her to deliver them to her husband, which she does, she may avoid her note, in an action upon it by the bank, upon the ground of duress, without restoring her husband's notes or the collaterals to the bank, as she has received no benefit. ACTION by the bank to recover the amount due upon a promissory note given to it, and signed by Mollie Kusworm. The defendant pleaded that the note was obtained from her without any valuable consideration therefor, through the fraud of the plaintiff's agent; that it was given to compound a felony; and that it was given under duress of threats to prosecute the defendant's husband (then very sick, and who died soon thereafter) for the crime of forgery, and in consideration of the suppression of documentary proof of his guilt. The defendant admitted the making of the note and the amount, but, not having made full restitution to the plaintiff, which the court below held that she had to do before availing herself of the ground of duress, a verdict for plaintiff was directed for the principal sum and interest, amounting to $5,157.25. Defendant appealed from the judgment entered in accordance with the verdict. Bashford, O'Connor, Polleys & Aylward, and Moran, Kraus & Mayer, for the appellant. Charles Noble Gregory, L. P. Conover, and S. S. Gregory, for the respondent. 193 CASSODAY, J. The execution of the note in suit having been admitted, the plaintiff offered no evidence. On the part of the defendant the evidence, in effect, tends to prove: That on, and for some time prior to, November 1, 1892, the plaintiff held two promissory notes which it had received 194 from the defendant's husband, Moses Kusworm, each of which was signed "M. Kusworm," one being for $4,100, and the other being for $800, making an aggregate indebtedness of $4,900 for money loaned by the plaintiff to him, and that the same were secured by four, five, or six other notes, purporting to be executed by other parties, aggregating in amount $7,000 or $8,000, as collateral security for the payment of such indebtedness of $4,900; that in the forenoon of November 1, 1892, one Gebhart, agent for the plaintiff, having both of said notes, and also said notes so held as AM ST. REP., VOL. XLIII. - 56 collateral, in his possession, called on the defendant and requested to see her husband; that she told him her husband was very sick; that he said it made no matter, that he must see him, that her husband had borrowed $4,900 from the plaintiff bank, and that he had come there to either get the money or security; that she then obtained permission from the nurse for Gebhart to see Mr. Kusworm; that Gebhart then had an interview with Mr. Kusworm in his room alone, neither she nor the nurse being present; that finally Mr. Kusworm called the defendant, and she went into his room; that Mr. Kusworm then told her to put on her coat and hat, and go with Mr. Gebhart to Mr. Stone's house, and secure Gebhart for $4,900 on the mortgage of $12,000, in which the defendant had an equity of $6,000, the other $6,000 of which belonged to Stone, a cousin of Mr. Kusworm; that Gebhart then told her that he had notes with him for $4,900, which her husband had forged; that he would have the Pinkerton detectives take her husband back to Ohio, and put him in the hospital until he was able to go to jail, and would then put him in prison; that she protested on account of her husband's dying condition, and that it would rob her home and her two little children of a father; that she almost fainted; that Gebhart then said, "No matter"; that he had come as agent of the bank, and must fulfill his 195 duty; that he must either take Mr. Kusworm back to Ohio or she must take up these notes which Mr. Kusworm had forged; that thereupon she and Gebhart took a cab and drove to the office of the plaintiff's attorney, and that the attorney then got into the cab and they all drove to the house of Stone; that Stone was not at home, and so she left a note, requesting him to call at the attorney's office at 3 o'clock that afternoon; that she then returned to her home and found her husband under the effects of a sleeping-powder, but she was cautioned by the nurse not to speak to him for fear that he might die from the effects; that the defendant was in a very delicate condition and weak at the time, having been in the family way for more than three months, but that she managed to get back to the attorney's office at the time appointed; that she found Gebhart and his attorney there, but Stone did not arrive until some minutes afterward; that Gebhart at once repeated his threats; that when Stone came she introduced Gebhart to him as the man who claimed that her husband had forged |