Rittenberg v. Smith

214 Mass. 343 | Mass. | 1913

Morton, J.

The plaintiff was a witness and for the purpose of affecting his credibility the defendant offered a record of the United States Circuit Court showing the plaintiff’s conviction for fraudulently and knowingly concealing from one Percy A. Atherton, trustee in bankruptcy, certain personal property belonging to one Jacob Kerrch, and his sentence to a term of fifteen months in the jail at East Cambridge. The plaintiff objected and offered a certificate duly made showing that after the plaintiff had served a part of his "sentence the same was commuted by the President' to expire at once, and that he was released. The defendant objected to the certificate that it was not a pardon. But the court admitted it and excluded the record of conviction. The defendant excepted. We think that the record should have been admitted.

By R. L. c. 175, § 21, it is provided that “the conviction of a witness of a crime may be shown to affect his credibility.” The first provision touching this matter is found in the Rev. Sts. c. 94, § 56: “No person shall be deemed an incompetent witness, by reason of having committed any crime, unless he has been convicted thereof in this State; but the conviction of any person, in any court without the State, of a crime which, if he has [had] been convicted thereof within this State, would render him an incompetent witness here, may be given in evidence to affect his credibility.” This related to crimes, proof of the conviction of which would render a witness incompetent at common law, and it was expressly provided that proof of the conviction of a witness of such a crime in another State should be admissible here to affect his credibility. See Commonwealth v. Knapp, 9 Pick. 496, 511. The next statute was St. 1851, c. 233, § 97. The concluding sentence of this section is as follows: “And the conviction of any crime may be shown, to affect the credibility of any person testifying.” This sentence and the section in which it is found were re-enacted in totidem verbis in St. 1852, c. 312, § 60. With slight changes in phraseology and with changes in the order and connection in which it occurs, the sentence which we have quoted above from St. 1851, c. 233, has appeared in successive re-enactments. Gen. Sts. c. 131, § 13. St. 1870, c. 393, § 3. Pub. Sts. c. 169, § 19. The change from “any crime ” in Gen. Sts. c. 131, § 13, and St. 1870, c. 393, § 3, and in previous statutes to “a crime” in Pub. Sts. c. 169, § 19, has no significance. It is plain, we think, that a conviction of any crime, whether a felony or a misdemeanor, may be given in evidence to affect the credibility of a witness. That was in effect so held in Commonwealth v. Hall, 4 Allen, 305, and was expressly decided in Commonwealth v. Ford, 146 Mass. 131, and in Quigley v. Turner, 150 Mass. 108. There is nothing limiting the conviction which may be shown to one obtained in the courts of this State. In Commonwealth v. Knapp, supra, a conviction obtained in Maine was permitted to be introduced in evidence. And in Gertz v. Fitchburg Railroad, 137 Mass. 77, it was assumed on due considertation that a conviction obtained in the United States District Court for a felony punishable with imprisonment stood on the same footing as a conviction obtained in another State and was admissible. We do not conceive that the fact that it was a felony rather than a misdemeanor made, or on principle should make, any difference. In the present case, the offense was one involving falsehood and fraud, and as such was calculated to show moral turpitude and a disregard for truth and honesty on the part of the person committing it. Commonwealth v. Green, 17 Mass. 515, 539-549, was decided in 1822 before the enactment of Rev. Sts. c. 94, § 56, and the question was whether a conviction of an infamous crime in another State rendered a witness incompetent. The question whether such conviction was admissible to impeach his credibility was left open with an intimation that it was (p. 541). The commutation of the sentence did not do away with the conviction. Only a full pardon could do that. Perkins v. Stevens, 24 Pick. 277. The effect of the commutation was simply to remit a portion of the sentence. The conviction remained undisturbed by the commutation and was admissible to affect the credibility of the witness. This exception must be sustained. St. 1913, c. 81,^* was not enacted till after this case had been tried and is not, therefore, applicable.

There is nothing in either of the other exceptions. There was evidence tending to show that the defendant refused to carry out and perform the agreement and that the plaintiff was ready and able and offered to perform his part of the contract. The question of waiver by the plaintiff of the alleged misrepresentation by the defendant in regard to the rent was rightly left to the jury. So also was the question whether there was any misrepresentation and whether and to what extent, if any, the plaintiff relied upon it. The circumstances under which the trade was entered into were such that it could not be ruled as matter of law that the plaintiff was not justified in relying upon the representations made by the defendant. The jury could not have been properly directed to return a verdict for the defendant as requested. We cannot say that the evidence concerning the characterization of the defendant’s appearance and manner was improperly admitted.

Exceptions sustained.

* St. 1913, c. 81, amends R. L. c. 175, § 21, to read as follows: “The convic- , tian of a witness of a felony may be shown to affect his credibility, but the conviction of a witness of a misdemeanor shall not be admissible to affect his credibility unless the conviction was obtained within the period of five years prior to the time of his testifying, or unless there has been a subsequent conviction of the witness within the period of five years prior to the time of his testifying.”