75 N.Y. 466 | NY | 1878
The only exception necessary to be considered, is that taken to the exclusion of the question to the *468 defendant while on the stand, whether he was guilty of the offence of which he had been convicted in the State of Ohio thirty-five years previously.
The defendant had given material testimony in his own behalf and we cannot say that the evidence which was excluded might not, if admitted, have influenced the jury in passing upon the question of his credibility. Consequently if such exclusion was erroneous the defendant is entitled to a new trial.
The plaintiff, after having given oral evidence, by the cross-examination of the defendant, of his conviction in Ohio in 1839 of the offence of having counterfeit money in his possession, put in evidence the record of conviction. The counsel for the defendant then asked him whether he was guilty of the offence of which he had been convicted, of having counterfeit money in his possession with intent to pass the same. On objection this question was excluded and exception taken.
The first point of inquiry is whether this conviction in Ohio rendered the defendant incompetent to be a witness in the courts of this State. Although the court below did not place its decision upon the ground that such was the legal effect of the conviction, yet it is apparent that if such was its effect, the question of his guilt or innocence could not properly have been inquired into, as the jury would have been bound to disregard his testimony entirely and it would have been the duty of the court to strike it out of the case if so requested.
The Revised Statutes provide (2 R.S., 701, § 23) that no person sentenced upon a conviction for felony shall be competent to testify in any cause, etc., unless pardoned by the governor or Legislature, except in the cases specially provided by law; but that no sentence upon a conviction for any offence other than a felony, shall disqualify or render any person incompetent to be sworn or to testify, etc.
The same statute in a subsequent section (p. 702, § 30) defines the term felony when used in that act or in any other *469 statute, to mean an offence for which the convict is liable, by law to be punished by death or by imprisonment in a State prison.
I think it quite clear that the disqualification created by this statute is consequent only upon a conviction in this State. It is found in that part of the Revised Statutes which relates to crimes and their punishment, and is in the nature of an additional penalty consequent upon the sentence. Although the disqualification incidentally affects parties in civil litigations wherein the testimony of the convict may be material, and serves as a protection to those against whom his testimony may be sought to be used, yet the provisions which inflict it must be regarded as a part of the criminal law of this State. Furthermore the provisions requiring that the offence be a felony, and defining the term felony as used in that act, indicate that the conviction referred to, is a conviction had within this State. Though petty larceny was a felony at common law it has been held that a conviction of that offence does not constitute a disqualification in this State but the offence must be a felony as defined in the statute above cited. (Carpenter
v. Nixon, 5 Hill, 260; Shay v. The People,
It was not shown that according to the laws of the State of Ohio a person convicted of the offence of which this party was convicted was incompetent to be a witness. But if this fact had been shown, or could be presumed, it could make no difference. There is some conflict of authority on this point. In Chase v.Blodgett (10 N. Hamp., 24), and State v. Chandler (3 Hawks, 393), it was held that one convicted in another State, of an offence, conviction of which rendered him incompetent in the State where convicted, and would have had the same effect in the State where he was offered as a witness had he been convicted there, was also disqualified in the latter State, but inCommonwealth v. Green (
Assuming that this constitutional provision applies to convictions for crimes (which is denied in the Massachusetts case) the answer to the position stated is twofold. First, that whatever reason may lie at the foundation of the law, the law is that the sentence, and not merely the commission of the crime, disqualifies the witness. The crime may be admitted or proved ever so conclusively, even by record, without having that effect. A judgment rendered in a civil action to which plaintiff, defendant and witness were all parties, finding the witness guilty of forgery, grand larceny, or any other felony, would not disqualify. Such a record might exist, as in cases of justification of libel, actions to cancel forged instruments, etc. The disability to testify can only follow conviction and sentence in a prosecution for the crime. Secondly, a record of conviction for a crime, is not conclusive evidence in a civil action, of the facts upon which it was based. There is a great weight of authority against its being admissible at all, except as evidence of the fact of conviction, where that fact is material. To give to a foreign record of conviction the effect of conclusive evidence in a civil action, of the fact that the party convicted committed the crime, would be to give it greater credit than the judgment of one of our own courts would be entitled to. Greenleaf states it us a general rule that a record of conviction of a crime is not admissible in evidence in a civil action, to prove the fact on which it was rendered. (1 Greenl. Evid., 537.) And so it has been held in many cases from Gibson v. McCarthy (Cases temp. Hardwicke, 311) to Mead v. The City of Boston (3 Cush., 404). The same rule prevails in Connecticut. (Swift's Evid., 20.) In other cases however it has been held that such judgments may, under some circumstances, be received in civil actions as prima facie evidence of the fact of guilt, but never as conclusive, or as estopping the party convicted from proving his innocence. These will be referred to in considering the remaining point in this case. *472 One strong reason assigned for not holding them conclusive is the absence of any mutuality in the estoppel. (1 Greenl. Evid., § 553; 2 Phill. Ev., p. 50.) The confusion which is sometimes perceptible in the cases on this subject, results from losing sight of the distinction between the purposes for which such judgments are offered, whether as evidence of the fact of conviction and judgment, or of the fact of the guilt of the party. Such a judgment is conclusive for the purpose of establishing the fact that it has been rendered, and all the legal consequences which flow from it. Therefore when by law the fact of conviction disqualifies a witness, the record, when introduced for that purpose, is unimpeachable and the evidence is for the court and not the jury. When offered for the purpose of establishing the fact of guilt there is a great weight of authority for the proposition that it is not admissible in a civil case, but it is well settled that if admitted it is onlyprima facie evidence.
This brings us to the second branch of the case. The conviction in Ohio, not having the effect of legally disqualifying the witness in this State, was nevertheless admitted and used as evidence that he had been guilty of the crime of having counterfeit money in his possession with intent to pass the same, and thus impeaching his credibility. It is a very serious question whether it ought to have been admitted at all, not only for the reason before stated, but for the further reason that at most it amounted to nothing more than evidence of a particular offence, and its omission contravened the rule that proof of particular acts or offences, except from the mouth of the witness himself, is not legally admissible for the purpose of impeachment; the exception being allowed for the reasons that he may be supposed to be able to explain his own acts, that he may decline to answer, and if he answers his statements are conclusive. It was held in Carpenter v. Nixon (5 Hill, 260) that a record of conviction of petty larceny was admissible as impeaching evidence, but that question is disposed of in two lines, the main question discussed being whether such a conviction disqualified the witness. Judge *473
JOHNSON in Gardner v. Bartholomew (40 Barb., 325) says that after having examined the authorities cited in 5 Hill in support of the admissibility of the evidence he doubts whether the point was properly decided. The authorities cited in 10 N. Hamp., 22 seem to afford much better support to the opposite view. Judge ALLEN in Newcomb v. Griswold (
The judgment should be reversed and a new trial ordered, costs to abide the event.
All concur, except MILLER and EARL, JJ., absent.
Judgment reversed.