The People v. . Park

James, J. The defendants in error were arraigned on an indictment for burglary, and pleaded not guilty. On the trial, one Corbin was offered as a witness for the prosecution, and objected to as incompetent; it being shown that he had been previously convicted and sentenced for the crime of burglary in the third degree, and had never been pardoned or restored to his rights as a citizen. It also appeared that, at the time of such conviction, said Corbin was under the age of sixteen years, and was sentenced to the house of refuge. The objection was overruled; the witness admitted and gave material testimony, and the prisoners were convicted. The General Term of the Supreme Court reversed that conviction for error in admitting said witness, and the people bring error to this court. The only question for consideration is the competency of Corbin to testify as a witness on the facts above stated. Under part 4, chap. 1, of the Revised Statutes, entitled, “ an act concerning crimes and their punishments,” it is *24 declared (2 R. S., 701, § 23) that “no person sentenced upon a conviction for felony, shall be competent to testify in any canse, matter, or proceeding, civil or criminal, unless he be pardoned by the governor or by the legislature, except in the cases specially provided by law; but no sentence upon a conviction for any offense, less than a felony, shall disqualify or render any person incompetent to be sworn or testify in any cause, matter, or proceeding, civil or criminal.” Burglary in the third degree is punishable by imprisonment in the State prison for a term not exceeding five years. (2 R. S., 669, § 21.) The Be vised Statutes declare the term “ felony,” where used therein, to mean an offense for which the offender, on conviction, shall be liable by law to be punished by death or imprisonment in State prison. (2 R. S., 702, § 30.) The term “ offender,” in said section, is not used as a word of limitation, making it dependent upon the personal status of the criminal, or his exemption from a particular punishment by reason of age or mental incapacity, where the offense for which he is convicted is a felony; but as a word of general application, in a general sense, to define the punishment following the crime. The statute is to be construed as declaring that the term “ felony,” as therein used, means any crime which is punishable by death or by imprisonment in the State prison, without reference to the personal exemptions or exceptions of the criminal. And this is not in conflict with Fassett v. Smith, (23 N. Y., 252), as that related to obtaining goods by false pretenses, the punishment for which was in the alternative, State prison, county jail, or fine; and hence not within the statutory definition of felony. Burglary in the third degree is felony, within the statutory definition of that term ; and in the view above taken it does not lose that character, because the convict is under sixteen years of age. As illustrated by counsel, it would be an absurdity, that a conviction on Monday, for a burglary previously committed, would not be a felony; which would be a felony, had the jury delayed their verdict till the next day/ when the convict had been over sixteen years of age. *25 Statutes should have a reasonable construction, so as to carry out the legislative intent, as far as possible. When the Revised Statutes were enacted, it is perfectly transparent what was intended by the sections under consideration. In making provision subsequently for ameliorating the punish ment of juvenile delinquents, the legislature- did not intend thereby to repeal, modify or limit the statutory definition of felony. I therefore hold that burglary, in the third degree, is a felony, no matter what may be the age of the convict, or whether the particular prisoner may or may not be punishable therefor in the house of refuge. That being so, and the witness, Corbin, having been convicted of such offense and sentenced, and not restored to citizenship, was excluded by the statute, and was incompetent to testify as a witness. His admission as a witness was error, for which the General Term properly reversed the conviction. That reversal should be affirmed