Lefcourt v. StreitLefcourt v. Streit
Anderson, Scott, McCarthy & Preston, William C. Steel, Miami, and Farr & Farr, Punta Gorda, for appellees.
WARREN, Associate Justice.
Following the close of plaintiff‘s evidence at final hearing upon bill of complaint and answer, the lower court granted defendant‘s motion to dismiss the bill of complaint and entered final decree. Plaintiff has appealed.
The cause came on to be heard on a bill for declaratory judgment, to impress a trust, for accounting, and other relief, it being alleged that plaintiff and the individual defendants had entered into a joint venture to purchase certain lands and that plaintiff was to have a ten per cent interest therein, but that without the knowledge and consent of plaintiff these defendants caused said property to be purchased by one of the defendant corporations, title being taken by the other defendant corporation; that defendants have failed and refused to execute any document indicating the interest of plaintiff in the joint venture, and have failed and refused to convey an undivided one-tenth interest in the premises to him. Essentially, the answer of defendants admitted that plaintiff made demands upon them to convey to him an interest in the property, but stated that they were under no obligation to do so.
As the first witness on his behalf, the plaintiff took the stand. He was asked his name, which was given, and thereafter counsel for defendants requested the court for permission to question plaintiff as to his competency to testify. Following that request, which was granted, counsel for defendants asked plaintiff if he had ever been convicted of perjury. An objection being made by counsel for plaintiff on the ground that the question was improper, counsel for defendants quoted
The record does not indicate the state wherein plaintiff was convicted of perjury, however, it appears agreed on this appeal that such conviction occurred in the state of New York.
The inquiry here therefore is as to the competency of a party to testify in his own behalf who has been convicted of perjury in another state. This appears to be a question of first impression in this state, and if it is decided in favor of the appellant, other questions advanced are not necessary to be answered.
In 58 Am.Jur., Witnesses, Section 142, the following is found: “As a general rule, conviction by crime which makes a person incompetent as a witness has reference to a conviction in a court of the forum. According to the weight of authority, a person who is offered as a witness is not rendered incompetent by reason of the fact that he has been convicted of crime in another state. Similarly, a conviction in a Federal court does not disqualify one as a witness in the courts of the state in which the Federal court was sitting, or vice versa. This doctrine, it is considered, is merely an application
In 2 A.L.R.2d, at page 581, there appears this summary: “A majority of the courts which have passed upon the point have reached the conclusion that a conviction in the courts of one state, will not work a disqualification of the convict as a witness in the courts of another state, assuming that such person would have been incompetent if the conviction had occurred in the state in which he was offered as a witness. This view has been taken irrespective of whether the alleged disqualification was based upon a common-law rule or an express statute and — in most instances — regardless of whether that witness’ testimony was tendered in a civil or a criminal action.” The following cases were given in support: Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429; Brown v. United States, 6 Cir., 233 F. 353, L.R.A. 1917A, 1133; Langdon v. Evans, 3 Mackey 1; Com. v. Green, 17 Mass. 515; Day v. Lusk, Mo., 219 S.W. 597; State v. Landrum, 127 Mo. App. 653, 106 S.W. 1111; Sims v. Sims, 75 N.Y. 466; National Trust Co. of New York v. Gleason, 77 N.Y. 400, 33 Am.Rep. 632; Cole v. Cole, 50 How.Pr. 59; Id., 12 Hun 373; Weber v. State, 18 Okla. Cr. 421, 195 P. 510; Burdine v. Kennon, 186 Tenn. 200, 209 S.W.2d 9, 2 A.L.R. 2d 577; Goldstein v. State, 75 Tex.Cr.R. 390, 171 S.W. 709; Missouri, K. & T. Ry. Co. of Texas v. De Bord, 21 Tex.Civ.App. 691, 53 S.W. 587. Supplemental annotations are Palmer v. Cedar Rapids & M. Ry. Co., 113 Iowa 442, 85 N.W. 756; Wood v. Wood, Ky., 264 S.W.2d 260; Vines v. State, 190 Tenn. 644, 231 S.W.2d 332.
Authorities on the law of evidence have taken the position mentioned above. In Wigmore on Evidence, Volume II, Third Ed., in section 524, it is pointed out that “the legislatures of almost every jurisdiction have long ago either entirely abolished or narrowly restricted the disqualification by conviction of crime. The earliest statute seems to have been that of England, in 1843. The statutes in the United States, when not providing for entire abolition, usually retain the common law rule for perjury only (including subornation); while a few retain it in its original scope as to kinds of crime, but apply it in criminal trials only; but neither of these limitations has any justification in logic or policy.” This authority, in section 522, quotes from Professor Simon Greenleaf, Evidence, Section 376, as follows: “Whether judgment of an infamous crime, passed by a foreign tribunal, ought to be allowed to affect the competency of the party as a witness, in the courts of this country, is a question upon which jurists are not entirely agreed. But the weight of modern opinion seems to be that personal disqualifications not arising from the law of nature but from the positive law of the country, and especially such as are of a penal nature, are strictly territorial, and cannot be enforced in any country other than that in which they originate. Accordingly it has been held, upon great consideration, that a conviction and sentence for a felony in one of the United States, did not render the party incompetent as a witness, in the courts of another state; though it might be shown in diminution of the credit due to his testimony.” Also, see Jones Commentaries on Evidence, Volume 5, Second Ed., Section 2098.
The competency of a convicted person as a witness in New York, where the conviction of plaintiff occurred, is stated in
The reason for the enactment of the New York statute, as disclosed in People v. Sullivan, 1898, 34 App.Div. 544, 54 N.Y.S. 538, 541, “is that, prior to the adoption of the Codes, a person convicted of a crime was entirely disqualified from testifying, and it was with the view to remove such disqualification, and to make the person convicted of a crime competent to testify, that they were passed, with the limitation, however, that `the conviction may be proved for the purpose of affecting the weight of his testimony.‘” In People v. McGloin, 1882, 91 N.Y. 241, the court stated, with reference to the aforementioned statute, that this section impliedly repealed the provision of the revised statutes rendering incompetent as a witness a person sentenced upon a conviction of a felony. Even prior to the enactment of legislation making a person convicted of a felony a competent witness, it was held that a conviction of a felony in another state did not operate to disqualify a witness. Sims v. Sims, 1878, 75 N.Y. 466; National Trust Co. of New York v. Gleason, 1879, 77 N.Y. 400, 33 Am. Rep. 632. In the latter case, the court ruled that a person convicted of a felony in another state might testify even though the term of the sentence being served had not expired.
It is therefore clear that plaintiff‘s conviction would not have served to bar his testimony in the state of New York.
In the case of Burdine v. Kennon, supra the court considered a state statute,
In Weber v. State, supra, a prosecution for larceny in the state of Oklahoma, it was held that the trial court erred in refusing the defendant the right to testify in his own behalf although the defendant had been convicted of perjury in the courts of Kansas. Construing a statute providing that “No person who has been convicted of perjury, or of subornation of perjury, shall thereafter be received as a witness in any action, proceeding or matter whatever upon his own behalf,”
In Samuels v. Commonwealth, 110 Va. 901, 66 S.E. 222, 223, which was concerned
There was involved in Wood v. Wood, supra, a Kentucky statute,
There are a few other cases which have passed upon this same or similar question, such as McCoy v. U.S., 5 Cir., 247 F. 861, and State ex rel. Mitchell v. McDonald, 164 Miss. 405, 145 So. 508, 511, 86 A.L.R. 290. In the former the court held that in a criminal prosecution in a federal district court for Florida, a witness convicted of a felony in a district court for Arkansas was competent. In the latter it was charged that the appellee was not qualified to hold office because he had been convicted of perjury, the charge being based upon the record of an alleged plea of guilty to an indictment for perjury in a federal district court in Louisiana. In disposing of this contention, the court said: “The question as applied to the disability of a person to testify has arisen in many cases, and the reasoning and principles applied in those cases apply with equal force to a disqualification for holding office arising out of a conviction of crime, and lead to the conclusion that only convictions of crimes committed under the jurisdiction of this state will disqualify one from holding office in this state * * *.”
Other late decisions have held that a conviction in a state court does not disqualify a codefendant from testifying as a witness in a federal court, Sharp v. U.S., 6 Cir., 195 F.2d 997, and that a person convicted of perjury in a state court may testify in a criminal prosecution in federal court although the perjurer was disqualified as a witness in the state court. United States v. Segelman, D.C., 86 F. Supp. 114.
Reversed for new trial.
DREW, C.J., and TERRELL, THOMAS and O‘CONNELL, JJ., concur.
THORNAL, J., dissents.
ROBERTS, J., not participating