State v. Henson

The opinion of the court' was delivered by Van Syckel, J. The defendant, on his trial for homicide, was sworn as a witness on his own behalf. On his cross-examination he was asked whether he had been convicted of assault and battery. Also, whether he had pleaded guilty to a charge of atrocious assault and battery. And, also,, whether he had pleaded non vult to a charge of petit larceny. — 602 — To each of these questions he answered yes, under objection to their competency. The only question involved in the ease is whether it was error to require the.defendant to answer these interrogatories. Our statute of June 7th, 1779 (Pat. L., p. 401), provided that no person convicted of blasphemy, treason, murder, piracy, arson, rape, sodomy or any infamous crime against nature, bigamy, robbery, conspiracy, forgery or larceny above the value of $6 shall be admitted as a witness, unless first pardoned; and no person convicted of perjury or subornation of perjury shall be admitted as a witness although pardoned. This was the positive law until it was changed by the revision of 1874. By an act concerning evidence, passed in 1871 (Gen. Stat., p. 1398, § 8), it was provided that “upon the trial of any indictment of any person charged with crime, the person indicted shall be admitted to testify as a witness upon such trial, if he shall offer himself as a witness in his own behalf.” Section 5 of the said Evidence act provides that the husband or wife shall be competent and compellable to give evidence in certain cases. Section 6 makes a defendant in a Chancery suit a competent witness for or against any other defendant. These sections were passed before 1874, as will appear by reference to Gen. Stat., p. 1398. Our statute prior to 1874 provided, as it now does, that a person convicted of perjury shall not be admitted as a witness even after pardon. None of the crimes specified in the Paterson act could, before 1874, have been proven to affect the credibility of a witness; such proof was an absolute disqualification. If a defendant, on trial for a criminal charge, was admitted as a witness on his own behalf, he would have stood before the jury unimpeached, and unimpeachable, by reason of being previously convicted of crime, and would have been entitled to the credit of any other witness. — 603 — The question first considered will be whether, before 1874, a person on trial for homicide could have been excluded from testifying on his own behalf, if he had previously been convicted of perjury or other crime specified in the Paterson act. Section 8, providing that the defendant shall be admitted, is no stronger than section 5, which says that the husband is not only competent but compellable to testify; nor than section 6, which declares that the person therein named shall be competent to testify. If competent he must be admitted, and it would be error to exclude him. These sections mean only that the husband, because of the marital relation, or the defendant in chancery because of being oo-defendant, or the defendant in an indictment because of being such defendant, shall not be incompetent to testify. It cannot be that the legislature intended that these persons, who before were wholly disqualified to testify, should not only have such disqualification removed, but that they should be the only persons who, when offered as witnesses, could not be rendered incompetent by showing that they had been guilty of an offence which rendered all other witnesses incompetent. And although the statute, before 1874, provided that no person convicted of perjury should be a competent witness even after pardon, the defendant on trial for crime would have been a competent witness before pardon. That such an exceptional favor was intended to be granted to a person on trial for a high crime cannot be.conceded in the absence of language which left no room for doubt. The statute declaring that certain specified persons shall not be admitted as witnesses is equally positive and express with the legislative declaration that a person on trial for crime shall be admitted as a witness on his own behalf. The settled rule of construction requires that effect shall be — 604 — given to all the statutes on the same subject, and they can be harmonized only by the interpretation above adopted. The fact of a prisoner being on trial did not exclude him from testifying in his own behalf, as it did prior to the passage of the eighth section, but by section 8 one disability was removed, and he was placed on the same plane with other persons offered as witnesses and subject to the same disabilities. But if this were not so prior to 1874, the Paterson act, as will hereafter appear, was repealed in 1874, and an independent act was passed providing that conviction of crime could be shown to affect the credit of a witness. Gen. 8tat., p. 1397, § 1. This is a general act, applying in its terms to all persons without exception, and it must therefore be held to include a defendant who is admitted as a witness under the aforesaid eighth section, which was passed in 1871. By the act of 1874, above referred to (Gen. Siat., p. 1397, § 1), it is provided that “no person offered as a witness in any action or proceeding of a civil or criminal nature shall be excluded by reason of his having been convicted of crime, but such conviction may be shown on the cross-examination of the witness, or by the production of the record thereof, for the purpose of affecting his credit.” It is contended that this act was passed with reference to the previously existing law in order to let in as witnesses those who had been excluded by the crimes specified in the Paterson act, and that it has no relation to crimes other than those in that act enumerated. In my judgment such a limitation of the act of 1874 is unwarranted. ■The Paterson act was not repealed by force of the said first section of the act of 1874, because it was inconsistent with it, but there was an express repealer of the Paterson act in 1874. Gen. Stat., p. 3194, pi. 25, 29; Id., p. 3775, pi. 77. The first section of the present act is an independent act, — 605 — and must be construed according to the language employed by the legislature to express its purpose in enacting it. The language is that no person shall be excluded by reason of his having been convicted of crime, but such conviction may be shown to affect his credit. It is the conviction of crime which is to affect credibility. The word “crime” being used without qualification, must be held to be used in its general sense to include any crime. It is not a word of doubtful meaning. If it had been intended that those crimes only which were specified in the Paterson act could be shown for the purpose of impeaching the credit of a witness, the act of 1874 would have expressly provided that the crimes enumerated in the Paterson act should not thereafter disqualify a witness, but might be proven to affect his credibility. A draftsman of even ordinary skill would have made the meaning of the act of 1874 indisputable by using the language above suggested. The act of 1874 was framed by the late Chief Justice Beasley, Chief Justice Depue and Mr. Cortlandt Parker. To hold that in the use of the word “crime” without qualification or restriction, they intended to employ it in a narrow and restricted sense, would impute to them conspicuous inaccuracy in framing this important statute. The English judges found no small difficulty in determining precisely the crimes which rendered the perpetrator infamous and incompetent to testify. The difficulty at common law lies in the specification of those offences. The English judges did not attempt to give an exhaustive list of such crimes, but wisely dealt with each case as it arose. See 1 Greenl. Evid., § 373, and notes. The distinguished jurists who formulated our law were, of course, familiar with the condition which existed at common law, and it is quite clear that, to remove the uncertainty which arose in the English courts, they adopted the word “crime” in its general sense to mean every crime. There are many crimes of great turpitude not specified in the Paterson act. Among others are counterfeiting, sheriff — 606 — aiding escape of his prisoners, embracery, bribery, compounding of crimes, extortion by judges, fraudulent voting, intentional injxxry to public property, obstructing railways, pro■ducing abortion and larceny under the value of $6. Can it be reasonably concluded that by the use of the word “crime” the legislature did not intend that any of these offences should be shown to affect the credibility of a witness ? It may be that conviction of the crime of assault and battery, in -many instances, would be no substantial ground for impairing credibility, but the legislature may designate the crimes, a conviction of which will affect credibility, and the courts cannot restrict or enlarge the enactment of the lawmaker, upon their view that some crimes do, and others do not, evince unreliability. The act of 1874 does not submit to the court, as a question of law, whether the crimes charged should affect credibility; it is a question for the jury, whose province alone it is to say to what extent, if any, credibility shall be affected. Proof of previous conviction of crime is not, and cannot be, offered or considered to establish the guilt of a prisoner on his trial; its only purpose and object is to affect the credit to be given to his own testimony voluntarily offered by him on his own behalf. After most careful reflection, I am convinced that this is the true construction of the existing law, and it is supported by judicial decisions in other states, which are entitled to great consideration. The case of State v. Sauer, 42 Minn. 258, is in point. The statute in that state is “conviction of any crime;” ours is “conviction of crime;” the language in the one case is no more comprehensive than in the other. The Minnesota court said: “The irresistible conclusion is that the legislature intended just what it said, leaving the whole matter, when evidence of crime is produced, to the good judgment of the jury.” In Commonwealth v. Hall, 4 Allen 305, 306, the court said: “It is suggested that, by the true construction of the statute, the crimes which may be proved to impeach a witness are only those which might formerly have been proved to exclude him. — 607 — The statute says the conviction of any crime may be shown to affect the credibility of any person testifying. This language is clear, and there is no reason to suppose that there was any intent to change the law by the general statutes.” The language used in the Massachusetts statute is “any crime.” To the like effect are the following cases: Helm v. State, 67 Miss. 562; Commonwealth v. Ford, 146 Mass. 131. The words used in our statute are: “Convicted of crime, and such conviction may be shown on cross-examination of the witness for the purpose of affecting his credit.” There being no specification or designation of the crime to which this inquiry may be directed, the accepted rules of interpretation will be disregarded if proof of the conviction of any crime is withheld from the jury. The act permits the conviction to be shown on the cross-examination of the witness. In Commonwealth v. Lockwood, 109 Mass. 323, Mr. Justice Gray correctly states the distinction between the terms “conviction” and “judgment” in this language: “The ordinary legal meaning of conviction, when used to designate a particular stage of a prosecution triable by a jury, is the confession of the accused, in open court, or the verdict returned against him by the jury, which ascertains and publishes the fact of his guilt; while judgment or sentence is the appropriate word to denote the action of the court before which the trial is had, declaring the consequences to the convict of the fact thus ascertained.” Our statute plapes the conviction in direct contrast with the record thereof. The question was properly put to the defendant, whether he had not been convicted of crime. The distinction between “conviction” and judgment has been very generally observed. 4 Bl. Com. 361; 1 Bish. Cr. L. 963 (7th ed.); United States v. Gilbert, 2 Sumn. 19; People v. Goldstein, 32 Cal. 432; Stevens v. People, 1 Hill 261; United States v. Walkinds, 6 Fed. Rep. 153; People v. Adams, 95 Mich. 541; Quintard v. Knoedler, 53 Conn. 485. — 608 — In Roop v. State, 29 Vroom 479, the question here involved was passed upon by our Supreme Court. The defendant in that ease was a witness on his own behalf in a criminal trial. On his cross-examination he was asked whether he had been convicted of keeping a disorderly house, which is not one of the crimes mentioned in the Paterson act. In the opinion in that case, delivered by our present Chancellor Magie, and concurred in by the late Chief Justice Beasley, it was held that the question was competent for the purpose of affecting his credit, under section 1 of the act concerning evidence. Gen. Stat., p. 1397. The Paterson act was a restraining statute in its effect on the common law, and if its repeal revived the common law the uncertainty which existed under the common law would prevail here, and crimes not specified in that act would totally disqualify a witness. At common law, larceny under the value of $6 rendered a witness incompetent. 1 Greenl. Evid., § 373, and notes. Therefore, while the crime of grand larceny would only affect the credibility of a witness, the crime of petit larceny would disqualify him. The question remaining to be considered is whether it was competent to ask the defendant whether he had pleaded non vult contendere to an indictment for petit larceny. The plea of nolo contendere has the same effect as a plea of guilty, so far as regards the proceedings on the indictment. It is a confession only for the purposes of the criminal prosecution, and does not bind the defendant in a civil suit for the same wrong. Whart. Cr. Pl. & Pr., § 418; Bish. Cr. Pro., § 802. A judgment founded on a plea of guilty, or of nolo contendere, is in like manner conclusive in a subsequent criminal prosecution, but in civil suits it is not such an admission of guilt as to be evidence against the party pleading it. 2 Whart. Ev., § 783. In Commonwealth v. Horton, 9 Pick. 206, it is held that a plea of nolo contendere to an indictment has the same effect — 609 — in the criminal trial itself as a plea of guilty, and sentence thereupon follows. In our Supreme Court, in a case decided in 1884, and not since called in question, it is held that a plea of nolo contendere is equivalent to a plea of guilty, the only difference in the significance of the two pleas being in the force each has upon a collateral proceeding. Peacock v. Hudson Sessions, 17 Vroom 112. The books agree that the only ■ advantage the defendant obtained by this plea is that he is not estopped to set up his innocence in an action based upon the same facts. 2 Hawk. P. C. 31, § 3; 1 Chit. Crim. L. *431. The defendant cannot plead this plea as of right, he must obtain the consent of the court to do so, and the fact that he has pleaded non vult presupposes that he had obtained leave of the court to enter such plea. The question whether the defendant had pleaded non vult was. equally competent with the question whether he had pleaded guilty. I have found no error in the proceedings of the trial court and am of the opinion that the judgment should be affirmed.