35 Haw. 827 | Haw. | 1941
These cases, involving the same parties and identical questions, are consolidated by agreement of parties. For a history of the cases prior to our former adjudication of them, see Goo v. Hee Fat,
The appellant has stated that the main question at issue is whether the lower court committed error in refusing to permit Goo Wan Hoy to testify and excluding his testimony and in refusing plaintiff's offer of proof on the ground that Goo Wan Hoy was incompetent to testify as a witness for the reasons stated and that the subsequent pardon of Goo Wan Hoy, before he was offered as a witness, did not remove such incompetency. The appellant urges that the rulings of the trial court complained of and set forth in his assignments of error were not only erroneous but also denied him the protection guaranteed by the due process of law provisions of the fifth and fourteenth amendments of the Federal Constitution. When these cases were formerly before us (see Goo v. Hee Fat, supra), there had been no ruling by the trial court upon the question of the competency of Goo Wan Hoy to testify as a witness and that question was not made the subject of any of appellant's assignments of error. It was mentioned for the first time in the briefs filed after the cases were here in the first instance and was thus injected into the proceedings informally and incidentally. The question was indifferently and inadequately presented and should have been ignored. And while the court in its opinion did discuss the divergent rules announced by the courts and text writers and expressed the view that under section 3823, R.L.H. 1935, a person convicted of the crime of perjury or subornation of perjury, although granted an executive pardon, is deemed insensible to the *830
obligation of an oath and therefore incompetent to testify, yet the reversal of the lower court was upon the sole ground that the circuit judge committed error in dismissing the causes for want of prosecution and upon that ground alone the orders of dismissal were set aside and the causes remanded for reinstatement. It is therefore clear that the expressions by the court on the effect of a pardon granted to a person convicted of the crime of perjury were at best dictum and in no sense became the law of the case. The doctrine of the law of the case is not applicable for the further reason that in the present appeal the appellant complains that by the exclusion of the testimony of Goo Wan Hoy he was denied the equal protection of the law in contravention of the due process provisions of the fifth and fourteenth amendments of the Constitution and involves the construction of a federal statute, namely, section 66 of the Hawaiian Organic Act. Thus a federal question is raised with the right on the part of the appellant to have an adverse decision by this court reviewed in the United States circuit court of appeals for the ninth circuit and hence this court is an intermediate court of appeal and under these circumstances, as held in Sumitomo v. Hawaii Nosan,
For a discussion of the distinction between "res judicata"
and "the law of the case" and of the application of the latter doctrine, see Southern Ry. Co. v. Clift,
We are now requested by appellant to reconsider our former ruling. The action of the trial judge in excluding the testimony of Goo Wan Hoy and denying appellant's offer of proof was undoubtedly influenced by what this court said in Goo v. HeeFat, supra, on the question of the competency of a person, convicted of perjury and subsequently *831 pardoned, to testify in the courts of the Territory. We therefore deem it timely to re-examine the question and to the limit of our jurisdiction finally set at rest the law of a question which has been a troublesome one to the courts for centuries past. In this examination we are greatly aided by the ability and commendable industry of the present counsel for appellant in the preparation of the briefs filed by him.
Section 3823, R.L.H. 1935, reads: "No person offered as a witness shall be excluded by reason of incapacity from crime, perjury or subornation of perjury only excepted, or interest, from giving evidence either in person or by deposition according to the practice of the court, on the trial of any issue joined or of any matter or question, or on any inquiry arising in any suit, action or proceeding in any court, or before any person having by law or by consent of parties authority to hear, receive and examine evidence. But every person so offered may and shall be admitted to give evidence, notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question or inquiry, or of the suit, action or proceeding in which he is offered as a witness, and notwithstanding that such person offered as a witness may have been previously convicted of any crime or offense except as aforesaid."
At common law a person is incompetent as a witness if he has been convicted of an infamous crime and sentenced therefor. The Hawaiian statute modified the common law rule by lifting the barrier in all cases except perjury and subornation of perjury. As to those crimes, incompetency is prescribed, if at all, merely by implication and not by express language.
Section 66 of the Hawaiian Organic Act confers upon the governor of the Territory the authority to grant pardons *832 or reprieves for offenses against the laws of the Territory.
It cannot be questioned that the doctrine sanctioned by this court in its former opinion has the support of the decisions of numerous courts. (See Blakely v. Bearden, 281 P. 952; ThePeople v. Evans,
It was upon the authority of the foregoing that the doctrine inGoo v. Hee Fat, supra, was founded. A more extended investigation of the question, however, leads us to the conclusion that the better and more modern rule is that a full and free executive pardon restores to a party all civil rights enjoyed by him prior to conviction, including the right to be heard as a witness in the courts; that proof of prior conviction should go only to the credit or impeachment of the witness, not to the exclusion of his testimony.
3 Jones, Evidence (4th ed.), p. 1290, says: "There is authority for the proposition that the pardon does not restore the witness to competency where he has been convicted under a statute which expressly prescribes the *833
disability to testify as an incident of the judgment, it being competent for the legislature thus to modify the general rules of evidence. But this rule is generally disapproved." "The modern tendency of the courts is to broaden the field of the competency of witnesses and to restrict that of incompetency." 70 C.J. 106. (See also Rosen v. United States,
In Vance v. State,
An able and exhaustive discussion of this question is found inDiehl v. Rodgers,
In Ex parte Garland, 4 Wall. 333, 380 (U.S.) (cited in theDiehl v. Rodgers opinion), Mr. Justice Field, speaking for a majority of the court, said: "When the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence." (See also Hester v.Commonwealth,
A majority, if not all, of the decisions which adhere to the theory of disqualification come from jurisdictions expressly prescribing it. Only by implication can it be said that our statute, namely, section 3823, R.L.H. 1935, renders a person convicted of perjury or subornation of perjury incompetent to testify but were its provisions specific, or even mandatory, it would undoubtedly be held to be nothing more than a futile legislative attempt to abridge the power of pardon granted to the governor of the Territory by Congress by the provisions of section 66 of the Hawaiian Organic Act, not infrequently referred *842 to as the constitution of the Territory. This statute confers upon the governor an unrestricted power to grant pardons, which is not subject to legislative control. The legislature of the Territory can neither limit the effect of the governor's pardon nor exclude from its exercise any class of offenders. The benign prerogative of mercy reposed in him cannot be fettered by any legislative restrictions. (See Ex parte Garland, supra, p. 380.)
We are impelled, therefore, to recede from that part of the former opinion of this court in Goo v. Hee Fat, supra, which expresses the view that a person convicted of the crime of perjury or subornation of perjury, although granted an unconditional pardon by the governor of the Territory, is incompetent to testify in the courts of the Territory, and we hold that at the hearing in the court below the appellant was entitled to have the testimony of Goo Wan Hoy heard and his offer of proof should have been granted. In justice to the circuit judge from whose judgments these appeals are perfected, it should be said that in excluding the evidence and rejecting the offers of proof he acted strictly in conformity with the doctrine which this court had approved in the prior appeal.
The judgments appealed from are set aside and the causes are remanded to the circuit court for new trials.