petency by his own declarations. But stronger evidence is required to exclude a witness for defect of religious belief than is required to set aside a juror.2 § 13. Statutory Abolition - of Incompetency upon this Ground. In many jurisdictions the objection of incompetency from the want of belief in the existence of a God is abolished by statute: this is the case in Arizona,3 California,+ Indiana, Kentucky, Maine, Massachusetts, Michigan,9 Minnesota, 10 Mississippi,"1 Missouri, 12 Texas, 13 Vermont,14 Virginia,15 and Wisconsin.16 5 8 In others, the statute merely requires a belief in the exist bid sympathy expressed for the atheist is wasted. For there is nothing to prevent him from taking any oath of office; nor from swearing to a complaint before a magistrate; nor from making oath to his answer in chancery. In this last case, indeed, he could not be objected to for another reason; namely, that the plaintiff, in his bill, requests the court to require him to answer upon his oath. In all these, and many other similar cases, there is no person authorized to raise an objection. Neither is the question permitted to be raised against the atheist, where he himself is the adverse party, and offers his own oath, in the ordinary course of proceeding. If he would make affidavit, in his own cause, to the absence of a witness, or to hold to bail, or to the truth of a plea in abatement, or to the loss of a paper, or to the genuineness of his books of account, or to his fears of bodily harm from one against whom he requests surety of the peace, or would take the poor debtor's oath; in these and the like cases the uniform course is to receive his oath like any other person's. The law, in such cases, does not know that he is an atheist; that is, it never allows the objection of infidelity to be made against any man seeking his own rights in a court of justice; and it conclusively and absolutely presumes that, so far as religious belief is concerned, all persons are capable of an oath, of whom it requires one, as the condition of its protection or its aid; probably deeming it a less evil, that the solemnity of an oath should in few instances be mocked by those who feel not its force and meaning, than that a citizen should, in any case, be deprived of the benefit and protection of the law, on the ground of his religious belief. The state of his faith is not inquired into, where his own rights are concerned. He is only prevented from being made the instrument of taking away those of others." 1 Law Reporter, pp. 347, 348. 'Commonwealth v. Wyman, Thach. (Mass.) Cr. Cas. 432; State v. Townsend, 2 Harr. (Del.) 543. 2 McFadden v. Commonwealth, 23 Pa. St. 12. 3 Comp. L. 1877, p. 469. 4 Hittell's Code, § 11,879; Fuller v. Fuller, 17 Cal. 605. 5 Rev. Stat. 1881, § 505. 6 Bush.Commonwealth, 80 Ky. 244. 7 Rev. Stat. 1871, § 81. 8 Gen. Stat. ch. 131, § 12; Pub. Stat. 1882, ch. 169, § 18. 9 Rev. Stat. 1846, ch. 102, § 96; People v. Jenness, 5 Mich. 305. 1) Stat. 1878, p. 792, § 7. 11 Rev. Code, 1880, § 1604. 12 Rev. Stat. 1845, ch. 186, § 21; Londoner v. Lichtenheim, 11 Mo. App. 385. 13 Rev. Stat. 1879, Art. 2249; Crim. Code, Art. 736. 14 Rev. Stat. 1880, § 1007. ence of a Supreme Being;1 and in others still, the requirement is that the witness should believe in a God who will punish false swearing.2 In Georgia and Massachusetts, the decisions hold that this disbelief goes only to the credibility of the witness. In several other states, where the statutory provision is that "all persons," or "every human being," or "every one who can understand an oath," shall be competent, it would seem that all disqualification by reason of defect of religious belief has been swept away.4 § 14. Common-Law Rule as to Infamous Persons. At common law, all persons convicted and sentenced for crimes ranked infamous, are thereby rendered incompetent to testify in any court of justice. "The basis of this rule is believed to be, that such a person is morally too corrupt to be trusted to testify; so reckless of the distinction between truth and falsehood, and insensible to the restraining force of an oath, as to render it extremely improbable that he will speak the truth at all. Of such a person, Chief Baron Gilbert remarks, that the credit of his oath is overbalanced by the stain of his iniquity." This disqualification extends to all cases where the declaration of the witness is to be used in a judicial proceeding for the purpose of establishing or proving some fact; and it applies to both written and oral evidence." Thus, the admission of a felon that he wrote a certain letter, is incompetent to qualify the letter as a standard of comparison to prove handwriting; and so positive is the law upon this subject, that a verdict will be set aside in a criminal case, where such a witness is permitted to testify, over objection, although he only said that he knew nothing of the crime, and was asleep at the time when it was charged to have been committed.8 1 Conn. Rev. Stat. 1849, tit. 1, § 140; Gen. Stat. 1875, p. 440; N. Hamp. Rev. Stat. 1842, ch. 188, § 9; Gen. Laws, 1878, ch. 228, § 12. Ohio Rev. Stat. 1880 (2d ed.), § 5240; 51 Greenl. Ev. § 372; Gilb. Ev. by Lofft, p. 256; Sylvester v. State, 71 2 Mo. Rev. Stat. 1835, p. 419; 2 Ala. 17; Taylor v. State, 62 Ala. 164. N. Y. Rev. Stat. (3d ed.) p. 505. 3 Donkle r. Kohn, 44 Ga. 266; Hunscom v. Hunscom, 15 Mass. 184. See also Com. v. Buzzell, 16 Pick. (Mass.) 153. People v. Robertson, 26 How. (N. Y.) Pr. 90; In re Sawyer, 2 Q. B. 721; Webster v. Mann, 56 Tex. 119. 7 Long v. State, 10 Tex. App. 186. 4 Iowa Rev. Code, 1880, § 3636; But see State v. Killet, 2 Bail. (S. C.) But it must be borne in mind, that nothing short of a judgment of conviction will render a person infamous: mere immorality,1 or even guilt of the most heinous offence, confessed or established by the verdict of a jury, but not shown to have been followed by the judgment and sentence of a competent tribunal, will not have that effect. Such matters, however they may affect the credibility of the witness, do not in any way tend to render him incompetent, as we shall presently see. Still, this rule of the common law, like all other similar regulations, is subject to some exceptions arising from necessity; thus, where the disqualified person is a party to the controversy, he may make any affidavit necessary for his defence, or for relief against an irregular judgment, for otherwise he would be remediless. But it has been held that his affidavit is not admissible in support of a charge of crime. In one case it was held that, having been a subscribing witness to a sealed instrument before his conviction, his handwriting might be proved, as though he were dead.5 § 15. What constitutes Infamy. It is probably impossible to designate with precision what constitutes infamy in the sense here used, or what acts will render a person infamous, and consequently incompetent to become a witness. Mere immorality will not. According to Sir William Scott, "the publicum judicium must be upon an offence, implying such a dereliction of moral principle as carries with it a'conclusion of a total disregard to the obligation of an oath."7 But what are the offences which do this? what is the least criminal of them? The more usual definition is treason, felony, and 1 Smithwick . Evans, 24 Ga. 461; Jones v. State, 13 Tex. 168. 2 Infra, § 16. See also 2 Dods. 186; Blaufus . People, 69 N. Y. 107; Brown v. State, 18 Ohio St. 496. 3 Davis & Carter's Case, 2 Salk. 461; Rex v. Gardner, 2 Burr. 1117; Skinner v. Perot, 1 Ashm. (Pa.) 57. Under this exception, a party seeking to recover the amount of a lost bond, though he is infamous, is competent to make affidavit of the truth of the facts alleged in his bill. Ritter v. Stutts, 8 Ired. (N. C.) Eq. 240. See also Donohoe v. People, 56 N. Y. 208. 4 Rex v. Gardner, supra; Walter v. Kearney, 2 Str. 1148; Perez v. State, 10 Tex. App. 327. 5 Jones v. Mason, 2 Str. 833. But in Massachusetts it is held that evidence of the testimony of a witness in a former trial, who has since been convicted of an infamous crime, is inadmissible. Le Baron v. Crombie, 14 Mass. 234. 6 State v. Randolph, 24 Conn. 363; Smithwick v. Evans, 24 Ga. 461; Craft v. State, 3 Kan. 450; Jones v. State, 13 Tex. 168. 72 Dods. 186. the different species of the crimen falsi; but here we meet with the same difficulty; for while the first of these terms is easily defined, the second is not, and the offences included within the third and last have never been enumerated with precision. It will not do to look to the Roman law, from which the term crimen falsi is borrowed, and which defines it to include not only forgery, but also every other species of fraud and deceit,1 because, at common law, many of the offences which, under the Roman law were included within the term, have never been deemed infamous in the sense here used; among these were false representations as to the quality of provisions, using false weights and measures, fraudulently conspiring to circulate false news, etc. On the other hand, the common law includes within the term, several offences which not only involve the charge of falsehood, but tend to hamper the due administration of justice, by the introduction of falsehood and fraud. Thus it is laid down that infamous crimes are treason, felony, and every species of the crimen falsi, such as forgery, perjury, subornation of perjury, and offences affecting the public administration of justice.2 But it has been held in Vermont, that an attempt to procure the absence of a witness, duly subpoenaed, in a criminal case, is not an infamous offence.3 § 16. How Infamy may be proved. As we have already seen, neither bad character nor a charge of crime, even though substantiated by the verdict of a trial jury, will suffice to prove infamy. There must be a judgment of conviction pronounced by a court of competent jurisdiction ; 1 See 1 Greenl. Ev. (14th ed.) § 373, n. 2 Schuylkill v. Copely, 67 Pa. St. 386; People v. Whipple, 9 Cow. (N. Y.) 707. 3 State v. Keyes, 8 Vt. 57. Such an offence is held to be merely a contempt of court. Com. v. Feely, 2 Va. Cas. 1; Haskett v. State, 51 Ind. 176. But see Clancey's Case, Fortesc. 208; Bushel v. Barrett, Ry. & M. 434. The following have been held to be infamous crimes: Burglary. Taylor v. State, 62 Ala. 164; People v. Park, 41 N. Y. 21. Barratry. Rex v. Ford, 2 Salk. 690. Conspiracy to defraud creditors. United States v. Porter, 2 Cranch, C. C. 60. Forgery. Poage v. State, 3 Ohio St. 229; Rex v. Davis, 5 nothing short of this will be received as legal and conclusive evidence of guilt, so as to render the witness incompetent.1 The reason of this rule is, that a mere verdict may be set aside, or a motion in arrest of judgment granted. The evidence of guilt in all such cases goes only to the credibility of the witness, not to his competency.3 But while a sentence is essential, it is not the nature of the punishment, but of the crime for which the sentence is imposed, which renders the party infamous.4 In proof of his infamy, the witness himself cannot be questioned, provided objection be made; but the fact must be shown by the record of his conviction (or, in proper cases, by an authentication of the record); no other proof will suffice.5 § 17. Effect of Foreign Judgment of Conviction. — Upon this branch of the subject the adjudged cases are not harmonious; but a careful scrutiny of them cannot fail to satisfy the reader that the true rule, supported by an overwhelming weight of authority is, that the record of a foreign judgment of conviction (and in the term "foreign" the judgments of courts of sister States are included) ought not to be received in evidence on the question of the competency of the witness, however much such evidence may (as it undoubtedly will) affect the 1 United States v. Dickenson, 2 McLean (U. S.) 325; People v. Whipple, 9 Cow. (N. Y.) 707; Blaufus v. People, 69 N. Y. 107. See also Dawley v. State, 4 Ind. 128; State v. Valentine, 7 Ired. (N. C.) L. 225; State v. Anderson, 5 Harr. (Del.) 493; People v. Herrick, 13 Johns. (N. Y.) 82; Cushman r. Loker, Mass. 108; Jackson v. Osborn, 2 Wend. (N. Y.) 555; Skinner v. Perot, 1 Ashm. (Pa.) 57. 2 But see Kehoe v. Com., 85 Pa. St. 127. People v. Herrick, 13 Johns. (N. Y.) 82; Wicks v. Smalbrook, 1 Sid. 51; s. c., T. Raym. 32. 4 Batholomew r. People, 104 Ill. 601; People v. Whipple, 9 Cow. (N. Y.) 707; People v. Park, 41 N. Y. 21; affirming 1 Lans. 263, in which latter case an infant, convicted of burglary, was, under the statute as to juvenile delinquents, sentenced to the house of refuge instead of to the state prison. The court held him incompetent on the ground of infamy. 5 United States v. Biebusch, 1 Fed. Rep. 213; s. c., 1 McCrary, 42; People v. Herrick, 13 Johns. (N. Y.) 82; Hilts v. Colvin, 14 Johns. (N. Y.) 182; Cooper v. State, 7 Tex. App. 194; Perez v. State, 8 Id. 610, and again in 10 Id. 327, where the court hold that the fact of infamy must be shown by the best evidence, or a proper foundation laid for the introduction of secondary evidence of the fact. The cases of State v. Ridgely, 2 Harr. & M. (Md.) 120, and Clarke v. Hall, Id. 378, are not authority to the contrary, for in these cases parol evidence was admitted merely to prove that the witnesses had been transported from Great Britain to Maryland prior to the Revolution. |