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\ii) Reg. V. Meek," 9 G. & P. 513.

( /) Cooke V. Maxwell,*- 2 Stark. R. 183, cor. Bayley, J. [k) 2 East, 78.

h) Rex V. Teal, 11 East, 307. Rands v. Thomas, 5 M. & S. 244.

(m) 1 Phill. Et. 23.

■)■ {In Massachusetts, conviction of an infamous offence, and judgment thereon, in a foreign
country, or in another State in the Union, does not render the party an incompetent witness.
Commonwealth v. Green, 17 Mass. R. 515. [But the record is admissible to affect his credit.
ComnioHweallh v. Knapp, 9 Pick. 497.]

In JIaryland, it has been held that persons sent as convicts from Great Britain, under the
St. 4 Geo. 1, c. 11, are incompetent to testify. 2 Har. & M'Hen. 120. State v. Ridgclj-. lb.
378, Clarke's Lessee i'. Hall. 1 Har. & .Johns. 572, Cole's Lessee v. Cole. See 1 Stark. Ev.
144, note (1). [New Ed. 172, n. 1.] 2 ib. 716 note (2). [New Ed. Vol. 1, 95, n. 2.] Post,
634, note (1).} [See Rose. Dig. Cr. Ev. 103, n. (3).]

[A witness is not rendered incompetent by the commission of, or by the conviction for
any crime, but only bj' a judgment upon such conviction. State v. Valentine, 1 Iredell, N.
C. 225.

The record of a conviction of petty larceny in another State will not render the person
convicted incompetent. Uhl v. The CommontveaUh, 6 Grattan, 706.]

* Eng. Com. Law Reps, xxxviii. 201. '' lb. iii. 305.



awarded.



don



975 OF EVIDENCE. [bOOK VI.

durcd victed of any felony not punishable with death, and hath endured or
the ■ffect" shall endure the punishment to which such oflPender hath been or shall
of a par- bc adjudged for the same, the punishment so endured hath and shall
don under j^^^g ^■^Q jjj^g effects and consequences as a pardon under the great seal
seal. as to the felony whereof the offender was so convicted ; provided always,

that nothing herein contained, nor the enduring of such punishment,
shall prevent or mitigate any punishment to which the offender might
otherwise be lawfully sentenced on a subsequent conviction for any
other felony."
No misde- See. 4, reciting that "there are certain misdemeanors which render
meanor ^^q parties convicted thereof incompetent witnesses," enacts that "where
perjury to any offender had been or shall be convicted of any such misdemeanor,
render in- (except perjury Or Subornation of perjury,) and hath endured or shall
after pun- endure the punishment, to which such offender hath been or shall be
ishmentj adjudged for the same, such offender shall not, after the punishment so
endured, be deemed to be by reason of such misdemeanor, an incom-
petent witness in any court or proceeding, civil or criminal."
What is a Where a man was convicted of larceny, sentenced to transportation

sufficient £^j, ggygjj Years, and confined in the hulks for that time and then dis-
endurance •' '

of the pun- charged, it was held, that his suffering seven years aboard the hulks,
'^^f fi°*i ^^ execution of sentence of seven years' transportation, operated as a
statute pardon ', and that his having escaped twice during such confine-
ment, for a few hours each time, did not destroy the effect of it.(?«)
By par- 2dly. It was formerly doubted whether a pardon could do more than
take away the punishment, leaving the crime and its disabling conse-
quences unremoved.(o) But it is now settled, that a pardon, whether
by the king or by an act of parliament, removes not only the punish-
ment, but all the legal disabilities consequent on the crime. (^)f This
effect will be produced by a pardon in misdemeanors as well as felonies,
wherever the disability is a consequence of the judgment ; but where it
*976 is declared by an act of parliament *to be part of the punishment, as in
the case of perjury or subornation of perjury on the 5 Eliz. c. Q,{q) the
king's pardon will not make the witness competent. ^r)

(?i) Rex V. Badcock, Russ. & Ryan, 248.

(o) Gilb. Et. 128. Browne v. Crashaw, 2 Bulstr. 154. Harris v. White, Palm. 412.
Wicks V. Smallbrooke, 1 Sid. 41. It was said, ^^ Poena potest toUi, culpa perennis erit."

(p) Cuddington v. Wilkins, Hob. 67, 81. 2 Hale, P. C. 278. Crosby's case, Salk. 689.
S. C, 1 Lord Raym. 39. Rookwood's case, 4 State Trials, 681. S. C. Cas. temp. Holt. 683.
By Treby, C. J., in Lord Warwick's case, 5 State Trials, l7l. Rex v. Ford, 2 Salk. 690.
Bentley v. Bisliop of Ely, Fitzg. 107. And a pardon by which the king remits the burning
in the hand will have the same effect. Rookwood's case, Lord Warwick's case, ubi supra.

(q) This statute provides, that the person convicted shall never be admitted to give evi-
dence in courts of justice, until the judgment be reversed.

(r) Rex V. Griepe, 1 Lord Raym. 256. Rex v. Ford, 2 Salk. 690. Gilb. Ev. 128. Bull.
N. P. 292. Dover v. Maester, 5 Esp. 94, by Lord EUenborough. The authorities on the
effect of the king's pardon, as to the restoration of competency, are all collected and com-

f [It has been said that a pardon takes away the guilt as well as the punishment of the
offence, [Cudington v. WUkins, Hob. 67, 81. Stark, on Slander, 180.) But this is neither
sound law nor good morals. Pardon removes the legal infamy of the crime, so that the
offender will be a competent witness ; but it cannot take away guilt or wash out the moral
stain. Though, therefore, the pardon of one convicted of felony will in general restore his
competency as a witness, yet the conviction may still be used to affect his credit. Baum v.
Clause, 5 Hill, 196.

An instrument of writing issued by the President under the seal of the United States,
which remitted the remainder of the term to one who had been imprisoned for a part of it
upon a conviction for mail robbery, was held to be a pardon which annulled the sentence
and restored the prisoner to his competency as a witness. Jones v. Harris, 1 Strobhart, 160.]



CHAP. V. § VII.] WHAT WITNESSES ARE COMPETENT. 976

If the pardon be conditional, the performance of the condition ought
to be shown, for on that depends all its validity. (s) Thus where the
pardon is on condition of transportation for a number of years, the wit-
ness is not competent before the expiration of the term, or other lawful
determination. (<)

Before the G Geo. 4, c. 25, and 7 & 8 Geo. 4, c. 28, in order to prove Proof of
that a witness after conviction had been restored to his competency by r'''*''""°'
pardon, the general rule was, that it was necessary to produce the pur-
don itself under the great seal : the privy seal, or sign manual, being
held only warrants, and countermandable,(«) But now by the former 6 Coo. 4, c.
of these statutes, (sec. 1) it is enacted, that in all cases, in which the^^' "• ^•
king shall be pleased to extend his royal mercy to any oifender con-
victed of call/ felony whcrchy the offender is cxeludcd from hcnrjil (f
clergy, and by warrant under sign manual, countersigned by one of
the secretaries of state, shall grant to the offender either a free pardon
or a pardon upon condition of transportation, imprisonment, or other
punishment, the discharge of such offender out of custody in case of a
free pardon, and the performance of the condition in case of a condi-
tional pardon, shall have the effect of a pardon under the great seal for
such offender, as to the felony of which he has been convicted. And by
the latter of these statutes, (sec. 13) this enactment is enlarged to cases 7 .t J' Geo.
where the royal mercy is extended " to any offender convicted of any j^°" ' ^"
felony punishable with death or otherwise." These statutes, it will be
observed, do not extend to misdemeanors.

3dly. The incompetency may be removed by a reversal of the 3. Rever-
judgment of outlawry, which must be proved by producing the re-flj'j^l'^^^^
cord.

In Lord Lovat's case,(t/-) where it was abjected that the witness had
been attainted by an act of parliament, which subjected him to all the
penalties of an attainder, unless he surrendered before a certain day, it
was allowed to be shown that the witness surrendered conformably to
the act; and the record of the proceeding, commenced on the part of
the crown, and defended on the part of the witness by a plea of surren-
der, which the attorney-general confessed to be true, was allowed to be
condusive evidence of the fact of his surrender within the limited
time, (it")

The consequence of incompetency from infamy is, that as the party Couse-
cannot be a witness, so he cannot make affidavits to support a com- [|,"Jo"^p °/
plaint against others,(x) but he may to exculpate or defend *himself.(y) toncyfrom
Thus he is not disabled from making an affidavit in relation to the '"'e-'^^^ql-
gularity of a judgment to which he is a party 5(5:) for otherwise he must
suffer all injustice, and could have no way to help himself.(rt) He is
for some purposes of evidence considered as dead. Thus, if he be the
subscribing witness to a bond, his handwriting may be proved, as if he
were dead. (6)

mented upon with great learning by Mr. llargrave, in the second volume of his Juridical
Arguments, p. 221.

(«) Hawlc. P. C. b. 2, c. 37, s. 45.

{t) Rex V. Burridge, 3 P. Wms. 439. 1 Phill. Ev. 22.

\n) Lord Warwick's case, 5 Hargr. State Trials, 4th ed. 171, by Trcby, C. J. Rex v. Mil-
ler, 2 W. Black. 798. Gully's case, 1 Leach, 98.

(v) 9 St. Tr. 652, G65. {w) 1 Phill. Ev. 20.

(x) Davis's case, 2 Salk. 4G1. "Walker v. Kearney, 2 Stra. 1148. 2 Hawk. c. 4G, s. 103.

(y) Davis's case, 2 Salk. 461. Charlesworth's case, cited 2 Stra. 1148.

(z) 2 Salk. 461, (a) 2 Hawk. c. 46, s. 103. (6) Jones v. Mason, 2 Stra. 833.



977 OF EVIDENCE. [bOOK VI.

Incompe- 4. Of incompetency from interest. — All witnesses interested iu the

inten;st°'" event of a suit arc to be excluded from being witnesses in favour of that

party to which their interest inclines them. They are excluded from a

supposed want of integrity, and not as some have supposed that they

AVhat in- may be saved from the temptation to commit perjury. (c) It becomes

tcrost dis- necessary therefore to consider what is and what is not such a disquali-
quahfies. „..*^ „, itii/ii

fying interest. The rule at present completely established, (though at

variance with several old decisions,) is, that the interest to disqualify
must be some legal, certain, and immediate interest in the event of the
suit, or in the record as an instrument of evidence available on future
What in- occasions in support of the witness's own intcrest.(fZ) But it is no objec-
terest does jJqj^ ^q i\^q competency of a witness, that he may have wishes or a strong
qualify. bias On the subject-matter of the proceeding, or that he may expect
some benefit from the result of the trial. Such circumstances may in-
fluence his mind and affect his credibility ; they are therefore always
open to observation and ought to be carefully weighed by the jury who
arc to determine what dependence they can have on his testimony ; but
they will not render him incompetent.(t^) Thus no tie of relationship
(except that of husband and wife to be hereafter noticed) will create a
disqualifying interest. A father may give evidence for his son, or the
son for his father, for though his consanguinity may influence his tes-
timony and afi'ect his credit, it will not make him incompetent. So a
witness is not to be excluded because he stands in the same situation as
the party for whom it is proposed he should give evidence ;(/) nor be-
cause he believes himself interested in the result of the proceedings ;(^)j-
nor because he believes himself under any honorary obligation to pay
the costs. (^)l It is not thought necessary to cite any of the civil cases

(c) 1 Pbill. Ev. 45, Tth ed. If a witness is interested in the event of a suit, he cannot
give .any evidence of any nature whatever for the party with which his interest sides. Thus
on an indictment against a township for not repairing a highway, a person of another town-
ship in the parish seems not to be a competent witness for the prosecution, even to prove
the road to be a common highway : though it may be said, that to such extent he charges
himself and his testimony is against his own interest, 2 Phill. Ev. 64, 6th ed. So in an
action of ejectment a witness who admits he is to have a lease of the premises, in case the
defendant is turned out of possession by the ejectment, is as incompetent to prove the de-
fendant in possession of the premises as to prove any material fact necessary for the support
of the action, ibid. •

(f?) 1 Phil. Ev. 81, 86. 1 Stark. Ev. 103. Smith i;. Prager, 7 T. R. 60.

(e) 1 Phill. Ev. 47, Tth ed. (/) Ibid.

\g) 1 Phill. Ev. 47, 7th ed. But it has been said that if he thinks he has an actual legal
interest he is incompetent, ibid., 54, note (2), 7th ed. Case of L'Amitie, 5 Rob. Adm. Rep.
344. See however Phill. iihi supra, and 1 Stark. Ev. 105.

{h) 1 Phill. Ev. 128.

f {Harper's (S. 0.) Rep. 63, Havis v. Barkley. Peck's R. 108, Rogers v. Burton. 2 Tyler,
272, State v. Clark. 4 Serg. & R. 226, Long v. Baillie. 6 Connect. R. 371, per Hosmer, C.
J. Ace.

2 Munf. 148, Richardson's Exr. v. Hunt. 4 Bibb, 445, Sentney v. Overton. 4 Mass. R.
518, Plumb V. "Whiting. 8 Johns. 428, Trustees of Lansinburgh v. Willard. Contra. See
also 4 Har. & McHen. 342, Peter v. Beall.} [Rose. Dig. Cr. Ev. 125, note.]

X {9 Johns. 219, Gilpin v. Vincent. 4 Wend. 292, Moore v. Hitchcock. 4 Serg. & R. 227,
Long V. Baillie. 6 Connect. R. 365, Smith v. Downs. 1 Ashmead, 133, Carman v. Foster.
Aec] [Rose. Dig. Cr. Ev. 125, note.] [In criminal as well as civil cases, witnesses are dis-
qualified who have a direct interest in the event of a case. But the expectation of a benefit,
not necessarily and legally flowing from the event of the proceeding, does not render the
witness incompetent : thus, the prosecutor, whose property has been injured, is a competent
witness in an indictment for malicious mischief, though a fine by the statute might be im-
posed by the jury, to be paid by the party injured. The State v. Truss, 9 Porter, 126. That
a witness for the prosecution in a criminal case has contributed funds to carry it on, goes
only to his credibility. The People v. Cunningham, 1 Denio, 524.

Upon the trial of an indictment for larceny the party injured is not a competent witness



CHAP. V. § Vri.] WHAT WITNESSES ARE COMPETENT. 977

supporting these rules; they will be found ably ami clearly stated aud
applied, in the treatises already referred to on this subject : but it may
be expedient to notice some of the most striking criminal cases, par-
ticularly those which on the ground of necessity, or by statutory *pro- *978
visions, are at variance with the general principles of evidence. Inform- ^^^'^^ °f
ers who are entitled to a part of the penalty are not good witnesses to jn^'^i'nter-
support a conviction, unless by the particular provisions or policy of ^-'^t.
several acts of parliament. (i)f So it has been held that on an indict-
ment for a forcible entry and detainer under the 5 11. 2, and 21 Jac. 1,
the party grieved is not a competent witness, for in case of a conviction
he will be entitled to restitution. (_/) So on a prosecution against seve-
ral persons for a con.spiracy, the wife of one of the defendants has been
holden not to be a competent witness for the others, a joint offence being
charged and an acquittal of all the other defendants being a ground of
discharge for her husband. (/i:) A person indicted as accessory before or
after the fact would in most cases be incompetent as a witness for the
principal, for his acquittal would enure to the accessory's discharge. (/)
If a man hath the promise of the goods or lands of the party attainted,
he is no lawful witness of a treason. (m) Inhabitants of a parish in-
dicted for not repairing a highway, were formerly not competent to give
evidence for the defendants.(w)

In cases of forgery, a party by whom an instrument purported to be l" forgery.
made, was not admitted to prove it forged, if, in case of its being genuine,
he would either be liable to be sued upon it or be deprived by it of a
legal claim against another. This, however, was an anomaly depend-
ing on decided cases rather than upon the principles of the rule above
stated. And now by the 9 Geo. 4, c. 32, s. 2, "on any prosecution by 9 Geo. 4, c-
indictment or information, either at common law, or by virtue of any p^' ^- ^^
statute, against any person for forging any deed, writing, instrument, or whose
other matter whatsoever, or for uttering or disposing of any deed, writing, name is
instrument, or other matter whatsoever, knowing the same to be forged; eompctcut
or for being accessory before or after the fact to any such offence, if the witness,
same be felony ; or for aiding, abetting, or counselling the commission
of any such offence, if the same be a misdemeanor; no person shall be
deemed to be an incompetent witness in support of any such prosecution,

(i) 1 Phill. Ev. &&, ante, p. 268. Where a statute can receive no execution, unless a party
interested be a •n-itness, there he must be allowed, for the statute must not be rendered in-
effectual by the impossibility of proof. Gilb. Ev. 114.

{j) Rex V. Beavan,* R. & M. N. P. C. 242, Littledale, J. Rex v. Williams,'' 9 B. & C. 540,
ante, vol. 1, p. 313.

(A-) Ante, p. 09(3. But where a woman was called to give evidence for the crown, whoso
husband lay under sentence of death, and she supposed and hoped that the conviction of
the prisoner would be the means of procuring her husband's pardon, she was admitted as a
witness, and the objection held to go to her credit and not to her competency. Rudd's case,
1 Leach, 127.

il) 2 Stark. Ev. 764, 1st cd. (m) 1 Hale, P. C. 303.

[n) Ante, vol. 1, p. 370. But see the 3 & 4 Vict. c. 26, s. I, post, p. 980.

for the prosecution if he is entitled to treble the value of the property stolen upon the con-
viction of the prisoner: but if he agree to release all claim to the treble v.ilue, and nn entry
of such agrenient be made of record, the court would not be warranted in including it in the
sentence, and the competency of the witness will be restored. Tfie Slate v. Prai/, 14 New
Ilamp. 464.]

f [An informer is a competent witness, although he may receive a part of the penalty.
This rule is founded on necessity and policy. United States v. Patterson, 3 JI'Lean, 53.]
» Eng. Com. Law Reps. xxi. 428. '' lb. xvii. 440.



978 OF EVIDENCE. [BOOK VI.

by reason of any interest which such person may have or be supposed
to have in respect of such deed, writing instrument or other matter. "f
Cases of But with this exception it is a general rule that in criminal prosecu-

corapeten- ^Jo^g tijg party injured may be a witness. (o) Thus it is the constant
Party practice on an indictment for robbery, to admit the evidence of the party

injured. robbed. (j>) And the prosecutor is competent notwithstanding he be eu-
*979 titled to a restitution of his property *on conviction of the thief,(^) or to
a reward on conviction, by virtue of particular statutes or by proclama-
tion ;(r) or in consequence of the voluntary offer of a reward which has
been held out in order to ensure the apprehension and conviction of
offenders. (s) So a witness is competent upon an indictment for tearing
a promissory note payable to him,(<) or for extorting a bond from him, (it)
or for usury, although he was the borrower of the money and has not
repaid it;(?') so for cheating him of money by false pretences ;(?/;) or
upon an information for fraudulently procuring him to execute a cogno-
vit, (a;) In the earlier cases, the decisions seem to have proceeded upon
the ground of necessity; for it was said that in such private transactions
nobody else can be a witness of the circumstances of the fact but he
that suffers ; and in cases where no such necessity existed, the party
defrauded was in most instances considered incompetent, upon the sup-
position that he might avail himself of the verdict in some future pro-
ceeding, so as to entitle him to a remedy for the injury, or protect him-
self against the effects of the fraud. (?/) But it is now held that the
party aggrieved cannot avail himself of the record of the conviction in
any future suit in order to prove the criminal act.Ts) And it is also an
established rule that a court of equity will not grant relief on a convic-
tion, which proceeds on the evidence of the prosecutor, (a) Upon these
considerations the party injured is allowed to be witness of an indict-
ment for perjury, whether the suit in which the perjury was committed,
either at law or in equity, be at an end or not. (6) And it has been

(o) For it is not to be presumed that, a witness in a public prosecution is actuated by re-
vengeful or improper motives, and he has in general no legal interest beyond that of any
other ■witness.

(jt)) 1 Phill. Ev. 65. Rudd's case, 1 Leach, 132, joer cur.

{q) By the 7 & 8 Geo. 4, c. 29, s. 57. '

(r) 1 Leach, 132. Rioters' case, in note to Newland's case, ibid., 314.

(s) 1 Phill. Ev. 120, 6th ed. 1 Stark. Ev. 154. 1 Leach, 132, 314, note. So where a pro-
secutor had laid a wager that he should convict the defendant, he was held competent. Rex
V. Fox, Stra. 652.

(if) Rex V. Moise, 1 Stra. 595. (m) 1 Stark. Ev. 153.

\v) Reg. V. Sewell, 7 Mod. 118. Smith v. Prager, 7 T. R. 60.

iw) Reg. V. Mackartney, 1 Salk. 286. (z) Rex v. Parris, 1 Sid. 431.

\y) 1 Stark. Ev. 153.

(2) 1 Phill. Ev. 65. Bartlett v. Pickersgill, 4 East, 577, note (6). Rex v. Boston, 4 East,
581. Smith w. Rummens, 1 Campb. 9. Hathaway v. Barrow, 1 Gampb. 151. Burdon v.
Browning, 1 Taunt. 520.

(a) Bartlett v. Pickersgill, Rex v. Boston, uhi supra.

\b) Rex V. Boston, 4 East, 572. Ante^ p. 654, but see Rex v. Hulme,* 7 C. & P. 8, ante, p.

f {The old English rule that excluded a party, whose name is alleged to be forged, from
being a witness in support of an indictment for the forgery, prevails in Vermont, (1 Tyler,
260)— Connecticut, (Swift's Ev. 70.)— North Carolina, (2 Hayw. 288,) and New York, (4
Johns. 296.)

Aliter, in New Hampshire, (2 N. H. Rep. 481,) — Massachusetts, (3 Mass. R. 84. 1 ib. 7,)
—Pennsylvania, (2 Yeates, 1. 2 Dallas, 239. 1 ib. 110.)— South Carolina, (3 McCord, 442,)
and Louisiana, (1 Martin, 208.)

See 2 Stark. Ev. 582, note (1), [new ed. 338, n. (1),] and the cases there collected.}
[Rose. Dig. Cr. Ev. 106, n. («).]

a Eng. Com. Law Reps, sxxii. 417.



CHAP. V. § Vir.] WHAT WITNESSES ARE COMPETENT. 979

considered that even if the indictment for perjury proceeds on the 5
Eliz. c. 9, which gives the prosecutor half the forfeiture incurred, there
would bo uo objection to his coinpctcncy, .since in an action to recover
bis moiety, he would be precluded from giving the conviction in evi-
dence. (r)

Where an indictment has been removed by certiorari from the quar- Certiorari.
ter sessions to the Court of King's Bench, notwithstanding the prose-
cutor in that ca.sc, if the defendant be convicted, is by the 5 & G Wm.
<k M., c. 11, entitled to his costs, yet he is allowed as a witness : for,
as is remarked by I'arkcr, C. J., if the giving of costs should take off
the evidence of the prosecutor, that act of parliament, which *was *980
designed to discountenance the removal of suits by certiorari would
give the greatest encouragement to them that is possible. (f?) It seems Costs,
also that the prosecutor of an indictment for not repairing a highway,
is competent, as he cannot it seems be in the result liable to costs. (e)
In prosecutions against private persons or corporate bodies for not
repairing bridges, inhabitants of counties may be witnesses by the 1 Inhabi-
Anne, stat. 1, c. 18, s. 13.(/) Even before this statute such evidence of"coun(
had been thought admissible from necessity. (</) In all cases relative to
the Highway Act, the inhabitants of a parish or place, the surveyor Of parish,
and other officers, are competent witnesses by the 5 & 6 ^ym. 4, c. 50,
s. 100. (A) Where pecuniary penalties are directed to be applied to thelnhabi-
use of the poor, or for the benefit and exoneration of the parish or other eases of
place, the inhabitants are rendered competent witnesses on the trial of penalties
the offender, by the 27 Geo. 3, c. 29, provided the penalty imposed by f^e^poor
the act of parliament does not exceed twenty pounds. Before this act,
an inhabitant rated to the poor would have been incompetent. (/)

In order to provide against the inconvenience of excluding the evi-
dence of the inhabitants at large upon questions aifecting the interests
of parishes and other districts, the 54: Geo. 3, c. 170, s. 9, provided



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