104 Ill. 601 | Ill. | 1882
delivered the opinion of the Court:
Plaintiff in error was convicted, by the judgment of the court below, of the crime of larceny. It was not seriously contested that a larceny was committed, or that plaintiff in error was connected therewith,—the property stolen being found in his possession. The defence was, at the time of the taking, and for some hours afterwards, plaintiff in error was under the’influence of intoxication caused by the fraud or contrivance of another person-for the purpose of'inducing him to commit, or to aid in committing, the larceny. Our statute provides: “ Drunkenness shall not be an excuse for any crime or misdemeanor, unless such dfunkenness be occasioned by the fraud, contrivance or force of some other person, for the purpose of causing the perpetration of an offence.” (Bev. Stat. 1874, p. 395, sec. 19.) At common law, where it required a particular intent in the doing of an act to constitute crime,—as, for instance, larceny, where the intent to steal must accompany the act of taking,—it is held it may be shown in defence that the party charged was intoxicated to that degree that he was incapable of entertaining the intent-to steal, and that he neither then, nor afterwards, yielded it the sanction of his will. 1 Bishop on Criminal Law, (3d ed.) sec. 490; United States v. Routenbush, 1 Baldw. 517; Swan v. The State, 4 Humph. 136; Pigman v. The State, 14 Ohio, 555 ; Kessy v. The State, 3 S. & M. 518. See, also, 1 Wharton on Criminal Law, (7th ed.) sec. 41. It was, therefore, competent to make the defence relied upon.
The defendant was himself examined as a witness, and his testimony tended to make out this defence. Upon cross-examination he was asked if he had not been in the penitentiary. The same question was repeated to him several times, under different" forms. He uniformly answered in the negative. Afterwards the prosecution introduced Moses H. Luke, receiving and discharging clerk of the penitentiary located at Joliet, whom the court permitted to testify, over the defendant’s objection, that he had seen the defendant in the penitentiary at Joliet, suffering punishment as a convict under two different judgments of conviction. The same witness was also allowed to produce and read to the jury, over the defendant’s objection, the mittimuses under which, he testified, the defendant had been, each time, received into the penitentiary as a convict. The same witness was also allowed to produce and read to the jury, over the defendant’s objection, a statement made by the officers in charge of the peniten-' tiary, as, the witness said, when the defendant was each time received into the penitentiary. This gives the date received, the number by which registered, the name, the alias, the county where from and the crime for which sent, term of imprisonment, age, personal description, -etc. Exception was taken to these rulings at the time.
Under the common law, persons convicted of crimes which rendered, them infamous were excluded from being witnesses. (1 Wharton on Criminal Law, (7th ed.) sec. 758; 3 Blackstone’s Commentaries, (Sharswood’s ed.) 369, 370; 1 Greenleaf on Evidence, sec. 372.) All crimes were not deemed infamous, (1 Boscoe on Criminal Evidence, (5th Am. ed.) 134, 1 Greenleaf on Evidence, sec. 373,) and it was the infamy of the crime, and not the nature or mode of the punishment, that rendered the witness incompetent. Our statute provides: “Every person convicted of the crime of murder, rape, kidnapping, willful and corrupt perjury or subornation of perjury, arson, burglary, robbery, sodomy or other crime against nature, incest, larceny, forgery, counterfeiting, or bigamy, shall be deemed infamous.” (Rev. Stat. 1874, p. 394, sec. 279.) This leaves several offences punishable by confinement in the penitentiary that were neither deemed infamous at common law nor are declared to be so by statute, -notably among which may be mentioned manslaughter,—-an offence which is clearly not inconsistent with entire veracity. - •
By section 6 of division 42, of the revised Criminal Code, Rev. Stat. 1874, page 410, it is enacted: “No person shall be disqualified as a witness in a criminal ease or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his having been convicted of any crime, but such interest or conviction may be shown for the purpose of affecting his credibility: Provided, however, that a defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness.” Palpably, the purpose of this section is simply to remove the common law disability, and allow witnesses to testify who were thereby excluded. It neither professes to, nor does by implication, enlarge the class of cases wherein convictions discredit the witness. At common law, conviction of an infamous offence excluded the party from being a witness, but- now he may testify notwithstanding such conviction,— i. e., of an infamous offence; but the fact of such conviction, —i. e., of an infamous offence,—may be shown for the purpose of affecting his credibility. It could not have been designed to have allowed proof of a conviction for an offence, not legally presumed to affect his credibility, to be given in evidence. It is to be noted it is the conviction, not the punishment, for the offence, that may be shown, for the purpose of affecting credibility,—and this was the proof required at common law to exclude the witness. “It is,” says Green-leaf’s Evidence, sec. 375, “the judgment, and that only, which is received as the legal and conclusive evidence of the party’s guilt, for the purpose of rendering him incompetent to testify. * * * And the judgment itself, when offered against his admissibility, can be proved only by .the record, or, in proper cases, by an authenticated copy, which the objector must offer and produce at the time when the witness is about to be sworn, or at farthest in the course of the trial. ” Boscoe, in his work on Criminal Evidence, (5th Am. ed.) 136, says: “Where it was said that a witness is disqualified by conviction, a judgment of a court of competent jurisdiction was meant, and that judgment .must have been proved in the ordinary way.” Further along the author says: “It must have appeared that the party was convicted before a competent tribunal. Thus where, in order to prove a conviction at Sierra Leone, an indictment, and conviction thereupon were given in evidence, Bailey, J., held it insufficient, because it did not show by what authority the indictment was found, and because it was imperfect, 'as a record, without the caption, ”—citing Cooke v. Maxwell, 2 Stark. N. P. 183; and the case fully sustains the text. To the like effect is 1 Wharton on Criminal Law, (7th ed.) secs. 763, 659.
That at least the caption, returning of the indictment into open court by the grand jury, the indictment and arraignment of the defendant, are as indispensable parts of the record as the judgment of conviction, can admit of no doubt. (1 Bishop on Criminal Procedure, 913, et seq.) The statute only requires a certified copy of the judgment,—not a copy of- the record of conviction,—to be delivered to the sheriff or other proper officer of the county, as his authority for taking a convict and -delivering him to the warden of the penitentiary. (Rev. Stat. 1874, p. 414, sec. 18, div. 45, of the Criminal Code.) This is not made evidence of the conviction of the defendant generally, but is simply designed as a protection to the officers receiving the party, and detaining him, and as to them, and for that act, is, doubtless, sufficient evidence of his conviction. But they who undertake to discredit a party because of his conviction of an infamous crime, must make legal proof of that fact,—not merely of authority to detain in the penitentiary ; and, in our opinion, no such proof was here made.
There was, as we conceive, no reason why the prison record, or a copy of it, should have been read.in evidence. Plaintiff in error, by electing to become a witness, placed himself, so far as cross-examination was concerned, on the same plane with other witnesses. The jury were authorized to take his interest in the result of the case into consideration, and they were at liberty to wholly disregard his evidence, if, from other evidence, they believed it untrue; but they were also at liberty to give credence to it, and -might, if they believed it to be true, act upon it, even to the extent of his acquittal. It was as essential to the theory of the law admitting plaintiff in error to testify, that his evidence should not be improperly impeached or discredited, as that the evidence of any other witness should not be thus discredited. It is quite true, the jury might not have decided differently from what they did if this evidence had been excluded; but they might have done so, and plaintiff in error was entitled to the benefit of that chance. We can not say the jury were bound to disbelieve the evidence of the plaintiff in error, nor can we say that, if his evidence had been believed, the same result, both as to fact of guilt and amount of punishment, must have been reached, and plaintiff in error was entitled to 'all evidence that, might, legitimately, have affected him in either respect.
We perceive no other error in the record, but for that indicated the judgment is reversed and the cause remanded.
Judgment reversed.
