Commonwealth v. Tresca

Opinion by Oklady, J., When this defendant was being tried on a charge of criminal libel, he was called as a witness in his own behalf. The district attorney objected to his competency for the reason, “that he does not believe in the existence of a God who will punish him if he testifies falsely.” His examination was as follows: “Mr. Tresca, are you perfectly willing to take an oath? A. Yes, why not? Q. Do you believe in the existence of a God? A. I refuse to answer. I believe in an oath. Q. Do you believe in the existence of a God, who will punish you if you take a false oath? A. Anybody who will take a false oath will be punished. Q. By God? A. I refuse to answer. Q. Do you believe in a Supreme Being? A. Yes, sir. Q. What do you mean by a Supreme Being? A. As the force that regulates the things of the world. Q. Which is expressed and known by the name of God. Is that right? A. Anybody can call this force as they wish, I can call it the Supreme Being without calling it God.” The witness was held to be incompetent by the court, and was withdrawn. The trial resulted in his conviction and this is the sole error assigned. [622] It is not necessary to review the decisions and legislation on this question which has vexed the courts and legislatures since the formation of our government, as it has been definitely settled by the Act of April 23, 1909, P.. L. 140; the second section of which provides that “Hereafter the capacity of any person to testify in any judicial proceeding shall be in no wise affected by his opinions on matters of religion.” And section third “No witness shall be questioned, in any judicial proceeding, concerning his religious belief; nor shall any evidence be heard upon the subject, for the purpose of affecting his competency or credibility.” The fourth section is as follows: “Hereafter the affirmation may be administered in any judicial proceeding instead of the oath, and shall have the- same effect and consequences, and any witness who desires to affirm shall be permitted to do so.” By the Act of May 21, 1885, P. L. 23, the defendant, at his own request but not otherwise is to be deemed competent as a witness, and by the act of 1909, his opinions on matters of religion are not to be made a subject of inquiry for the purpose of affecting either his competency or credibility. The test of competency as established in Cubbison v. M’Creary, 2 W. & S. 262; Blair & Hutton v. Seaver, 26 Pa. 274, and other cases has been radically changed by this act of 1909, and its language is broad enough to remove, all incompetency by reason of any religious belief. We have nothing to do with the wisdom of this legislation and accept it as a legislative direction. The general credibility of the witness, independent of his religious principles, is still left for the consideration of the jury, believe what he may and swear how he will. The court having refused to permit him to be sworn, he was not obliged to offer to take the affirmation as a substitute for the oath he was willing to take, and which he asserted would be binding on his conscience, he should have been permitted to be sworn and testify. This right having been denied him, the judgment is reversed and a new trial awarded.