Pitner v. State

Willson, Judge. A. S. Kaufman was the principal witness who testified in behalf the State on the trial of this cause. Defendant objected to the competency of this witness, and in support of such objection offered in evidence a certified copy of the record of a judgment of the circuit court of Barber county, State of Kansas, showing that one A. S. Kaufman had been convicted in said court of the crime of forgery in the second degree, and sentenced to confinement in the penitentiary of that State for the term of one year from the date of said conviction, said date being November 14, 1884. To this judgment the State objected. First. Because it did not appear from said record that forgery is felony in Kansas. Second. Because it did not appear from said record that A. S. Kaufman had ever been convicted of a felony; and, third, because it appears from said record that A. S. Kaufman had been tried and convicted upon an information, and the Constitution of the United States prohibits a conviction for any felony except upon an indictment. These objections to the judgment were sustained, and the witness was permitted to testify in the cause ; to which ruling of the court the defendant excepted and reserved his bill. We will consider the objections to the judgment in the order in which they are stated, and the first two may be considered together. It fully appears from said judgment that said witness had been convicted of “ felony ” as that term is defined by the laws of this State. By the laws of this State “every offense which is punishable with death, or by imprisonment in the penitentiary, either absolutely or as an alternative, is a felony.” (Penal Code, art. 54.) All forgeries, by the law of this State, are punishable absolutely by confinement in the penitentiary. (Penal Code, chap. 1, title 14.) But the objection made to the judgment is that it does not show that the forgery named therein was a felony by the law of Kansas, the State in which the conviction was had. Conceding that the conviction would not render the witness incompetent unless the crime was a felony by the law of Kansas, as well as by the law of this State, and this, we think, is the correct view (Chase v. Blodgett, 10 N. H., 22), still it was not necessary that the judgment on its face should show that the offense [375] was a felony by the law of Kansas. That fact, if it was a fact, would properly be proved by the law of that State, and hence the first two objections to the evidence were not valid and should not have been sustained. The third and only other objection made to the judgment is not maintainable. The fifth amendment to the Constitution of the United States, which provides that “ Ko person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury,” etc., is not a limitation upon the powers of the States, but upon those of the United States. The Constitution of the United States being framed for the establishment of a national government, it is a settled rule of construction of that instrument that the limitations it imposes upon the powers of government are in all cases to be understood as limitations upon the government of the Union only, except where the States are expressly mentioned. (Cooley on Const. Lim., p. 25.) Therefore the power to prosecute crime by information, or by other mode except by indictment of a grand jury, not being surrendered by the States, they may, and some of them do, exercise such power. If, in the State of Kansas, a prosecution for felony, by information, is authorized by the organic and statutory law of that State, such a prosecution is legal in that State, and a judgment rendered therein would be valid in any other State, although under the Constitution or law of such other State, a prosecution for felony can only be by indictment of a grand jury, as is the case in our State. But, as the judgment offered in evidence shows upon its face that it would not be a valid judgment had it been rendered in this State, it devolved upon the defendant to show that it was valid under the Kansas law, and until this was shown it was not admissible in evidence. “A judgment of another State, when offered in evidence, ought to be shown to be valid. If it would not be valid if rendered in the State where it is offered in evidence, the party who relies upon it must show that it is valid according to the laws of the State within whose jurisdiction it was pronounced.” (Freeman on Judgments, sec. 571; Crafts v. Clark, 31 Iowa, 77.) Whilst, therefore, neither of the three objections made to the judgment was sufficient to render it inadmissible, the court did not err in rejecting it, because upon its face it is apparent that it would not have been a valid judgment under the laws of this State, had it been rendered in any court of this State, the prosecution being, as it recites, by information [376] (Bill of Bights, sec. 10; Code Crim. Proc., art. 416), and it was not proved that it was a valid judgment by the laws of the State where it was rendered. As this view disposes of the question presented by the bill of exception, we might be excused for declining to discuss another objection urged against the admissibility of the judgment, by the assistant attorney general, and ably argued in his brief. He assumes the position that a judgment of conviction of a felony had in another State can not be used to disqualify a witness in the courts of this State. This presents a question which has not been decided by the courts of last resort in this State, and which is interesting and important; and, because of its importance, and of the probability that it will arise in other cases, we think it not improper that we should now express our views upon it. Leaving out of view any statutory provision upon the subject, the position of the assistant attorney general is sustained by very high, if not the great weight of authority. There is, however, much conflict in the decisions of States which have no statute declaring the rule. (1 Greenl. Ev., sec. 376; Whart. Crim. Ev., sec. 363; 1 Bish. Crim. Law, secs. 109 and 976; and notes in which the authorities are collated by the authors.) We would incline to the view contended for by the assistant attorney general, were we called upon to decide the question without being controlled by statutory enactment. But in this State we have statutory provisions on the subject, and in the consideration and determination of the question we must be governed by those provisions. It is provided that all persons are competent to testify in criminal actions, except certain persons specifically mentioned, one of those exceptions embracing “all persons who have been or may be convicted of felony in this State, or in any other jurisdiction, unless,” etc. (Code Crim. Proc., art. 730, sub-div. 5.) It is ingeniously and plausibly argued by the assistant attorney general that this statute does not affect the doctrine contended for by him,—that the words “or in any other jurisdiction,” occurring in said provision, must be construed to mean the jurisdiction rof the United States when exercised within the territorial limits of this State, and do not embrace any jurisdiction beyond'those^territorial limits. To place this construction upon the words quoted would, it seems to us, be a narrow and strained interpretation, and would not fully reach the legislative intent. We are strengthened and [377] confirmed in this view when we revert to the Act of the legislature which, for the first time in this State, prescribed this disqualification:—that is, the act of March 6, 1863, the language of which is, “All persons who have been or may be convicted of felony in this or in any other State of the Confederate (United) States, or of any other State or kingdom, unless,” etc. (Pasc. Dig., art. 3109.) This was the statute in force at the time of the revision, and is the statute which the revisers had before them when they framed subdivision 5 of article 730 of the Code of Criminal Procedure. It is known that it was the general rule and purpose of the revisers, in changing the language of a statute, to retain its substance and intent, the change in its verbiage in most instances being made with the view only of rendering it more concise and plainer in meaning. It is evident to our minds that in framing subdivision 5 of Article 730 there was no intention to change the substance and meaning of the act of 1863, but the purpose was merely to render the provision more concise by substituting the words “or in any other jurisdiction” for the words “in this or any other State,” used in the original Act. Our conclusion, therefore, is that under our statute a conviction of a felony is available to disqualify a witness, although such conviction was not had within the territorial limits of this State. It is to be observed that this provision of our statute relates qnd is confined to criminal actions. There is no such statutory provision governing in civil actions. As to the policy of this statutory provision, we have nothing to do. Strong reasons in support of its wisdom and justice can doubtless be advanced, while, in opposition, grave objections might be arrayed. In his able brief the assistant attorney general suggests that if the construction which we have placed upon this statute be a correct one, then the statute is invalid, because it is violative of the fundamental principles of our government. It not being essential to a determination of this case that this question be decided, we shall decline to discuss or pass upon it. We have, however, to some extent, investigated the subject, and incline to the opinion that the statute is valid. II. It was not error to omit to charge the law with regard to accomplice testimony. There is no evidence tending to show that the witness Kaufman was an accomplice in the theft charged against the defendant. III. It is objected to the charge of the court that it does not [378] instruct the jury as to the penalty for the offense. The charge is that the jury should “assess the punishment at not less than two nor more than five years,” but does not state that said punishment shall be by confinement in the penitentiary. The jury in their verdict assessed the punishment at confinement in the penitentiary for two years. The charge was not excepted to, and it is apparent from the verdict that the jury understood it correctly, and were not misled by the failure of the court to state that the punishment should be by confinement in the penitentiary. The omission in the charge evidently did not operate to defendant’s injury, and such omission can not be regarded as fundamental or even reversible error. (Hill v. The State, 11 Texas Ct. App., 456.) In the case of Hamilton v. The State, 3 Texas Court of Appeals, 494, this court seems to have held a contrary view, but it does not appear from the published report of that case what was the verdict of the jury, or whether the charge was excepted to. To the extent that the decision in that case conflicts with our views herein expressed, it is overruled. Opinion delivered May 21, 1887. We have considered other errors complained of by the defendant, but they are of a character not necessary to be discussed,. and there is no error apparent of record for which the conviction should be disturbed, wherefore the judgment is affirmed. Affirmed.