Shay v. . the People

Comstock, Ch. J. Leary was a competent witness for the People. The act concerning crimes and their punishment (2 R. S., 701) declares, in the 23d section, that “ No person, sentenced upon a conviction for a felony, shall be competent to testify in any cause, &c., unless pardoned by the Governor or the legislature, except in the cases specially provided by law; but no sentence upon a conviction for any offence other than a felony shall disqualify or render any person incompetent to be sworn or to testify in any cause, matter or proceeding, civil or criminal.” The 30th section of the same act declares that “ the term ‘felony,’ when used in this act, or in any other statute, shall be construed to mean an offence for which the offender, on conviction, shall be liable by law to be punished by death or by imprisonment in a state prison.” Leary had been convicted of petit larceny, as a first offence; and that crime is not, by law, punishable with death or by imprisonment in a state prison. (2 R. S., 690, §1.) -According to our criminal code, therefore, he had not been sentenced upon conviction for a felony, and he was a competent witness. (Carpenter v. Nixon, 5 Hill, 260.) This is clear upon a mere statement of these provisions of the statute; and no argument can make it plainer. Nor do we entertain any doubt that the indictment was sufficient, and, therefore, that the motion in arrest of judgment, made in the court below, was properly denied. The clerical error, consisting in the omission of one single word “with,” in stating the means by which the homicide was committed, does *319 not at all obscure the sense and meaning of the accusation. As the case is a capital one, we have considered this point attentively ; but we do not think that it requires a particular discussion. The judgment must, however, be reversed, and a new trial granted, for reasons connected with the statute enacted at the last session of the legislature “in relation to capital punishment.” These reasons are given at length in the case of The People v. Mary Hartung, decided at the present term. Ordered accordingly.