Gardner v. Bartholomew

Johnson, J. It was decided in the case of Carpenter v Nixon, (5 Hill, 260,) that the record of the conviction of a witness of petit larceny, was admissible for the purpose of affecting the credit of such witness, and that the refusal to receive it for that purpose was error. In Newcomb v. Griswold, (24 N. Y. Rep. 298,) the competency of such evidence for that purpose is admitted, hut it is held that the fact of the conviction cannot be proved by parol, even by the witness himself upon cross-examination, but must be established by the higher evidence of the record. This is an exception to the general rule laid down in all the elementary works upon evidence, that particular facts cannot he proved to affect the credit of a witness, hut that the examination must he confined to his general reputation. An examination of the authorities cited in support of the determination in Carpenter v. Nixon, has led me to doubt somewhat whether the question was correctly determined in that case. But the question does not arise here, as no objection was raised to the introduction of the record to prove the conviction. The only question presented is, whether it was competent for the plaintiff, after the fact of the larceny had been established by the record, to give evidence explanatory of the conviction and in favor of the innocence of the witness of the crime, notwithstanding the conviction. This was allowed by the court against the defendant’s objection, and the ruling was duly excepted to. It must he admitted that the record of the conviction afforded conclusive evidence, not of the conviction only, but of the fact of the commission of the offense upon which the conviction was founded. It imported absolute verity. It was evidence incontrovertible, of the truth of whatever was determined by the adjudication, if such adjudication was upon the matter in issue. It was not open to contradiction or varia [330] tion by parol. (1 Greenl. Ev. §§ 526 to 530 inclusive.) The statute makes the certificate of the conviction, when made and filed, or a duly .certified copy thereof, evidence in all courts and places of the facts stated therein. (3 R. S. 1011, 5th ed.) Facts established by record evidence, upon a collateral issue, can no more be contradicted or varied by parol evidence, than when thus established upon the direct issue. And it was held in Newcomb v. Griswold, (supra,) that the rule was the same whether the evidence related to the competency or to the credit of a witness. Eo one, I suppose, would contend that where a record of the conviction of a person of a felony, was introduced to prevent his being sworn as a witness in a cause, the party offering him as a witness could be allowed to give evidence to show his innocence of the crime of which he had been convicted. It is the crime that creates the infamy and takes away the competency, and not the punishment. (Pendock v. Mackender, 2 Wils. 102.) But the’ record is conclusive as to the fact of the crime. The evidence was allowed for the purpose of affecting the credibility of the witness, and not her competency, and it was a question for the jury to determine how much her credit ought to be affected by it in view of the nature of the offense and the lapse of time since its commission and the conviction. It is to be presumed they did not give any undue importance to that fact standing by itself. The evidence being competent for the purpose for which it was offered, was to be met, not by attempting to disprove the commission of the crime, but in some other way, which it is not now necessary to determine, as no question is raised upon it. Parker, C. J. in Commonwealth v. Green, (15 Mass. Rep. 541,) says: “ the effect of such proof may be always rebutted by evidence of good conduct, a virtuous life, &c.” It is enough, however, for the present case, that improper evidence was allowed in answer to the record, against the de [331] fendant’s objection. The order of the special term denying a new trial must therefore be reversed and a new trial ordered, with costs to abide the event. [Monroe General Term, September 7, 1863. J. C. Smith, J. concurred. E. Darwin Smith, J. dissented. Hew trial granted. Johnson, E. Darwin Smith and J. C. Smith, Justices.]