48 Me. 327 | Me. | 1861
. The opinion of the Court was drawn up by
The defendant was on trial for the crime of murder. A witness was sworn and testified to certain facts pertinent to the issue, when “ the counsel for the accused interposed, and stated that they had just been apprised that the witness, at the time' of the transactions testified to, was a convict of an infamous offence, undergoing sentence, which disqualified him from being a witness, and requested delay, to produce the record of it. The Judge intimated that, though such record would be admissible, to affect the credibility of the witness, it was too late now to raise the objec
The ancient rule, requiring that objections to the competency of a witness should be made before the oath was administered, has been relaxed in modern practice, and it has long been held that, if the incompetency was manifest from legal evidence at any stage of the trial, the testimony should constitute no part of the evidence, to be considered.
This change 'in the rule is conceded by the Attorney General, in cases where the incompetency is shown by other evidence than that of a record, but he contends that the relaxation does not extend to objections founded on evidence of the latter character. We see no sufficient reason for such distinction, and we are not satisfied that the authorities clearly and fully recognize it.
In the case of Commonwealth v. Green, 17 Mass., 515, where a new trial in a capital case was sought, on the ground that a witness for the government had been convicted of an offence which disqualified him as a witness, and that conviction was not shown at the trial, the Court, after commenting upon the grounds of the necessity of showing this by record, says, “ it being the rule, then, that objections to the competency of a witness, founded on conviction of crime, must be made at the trial, and when the witness is offered to be sworn in the cause, who is since found to have been convicted, the trial was not for that cause erroneous or irregular, and a new trial cannot, om that account, be demanded as a right.” That part of the language, just quoted, in these words — “and when the witness is offered to be sworn. in the cause,” may seem to favor the position taken in behalf of the government, but, when the remarks of the Court upon this point are examined together, it will be seen that this refers to the trial
The rule is well settled, for obvious reasons, that objections to the competency of a witness must be made before his examination, if known to the party objecting, or they will not avail. And if this knowledge is first acquired after the examination of the witness has commenced, the objection is waived if the witness is suffered to proceed after the discovery. Donelson v. Taylor, 8 Pick., 390.
These principles, however, which have been invoked in argument, are inapplicable to the case before us. The motion to the Court for delay, was upon the ground that the counsel for the accused had just been apprised that the witness was a convict of an infamous offence. If it be conceded that this language necessarily implies that this information was first communicated to them immediately before the motion to the Court was made, nothing shows that it was not fully known to the prisoner long before the trial began. If the party is aware of the facts on which the objection is founded, he must make the election to rely upon it as soon as the opportunity to make it is presented; and, failing to make it at that time, he is presumed to have waived it forever. 1 Greenl., Ev., § 421.
But the most formidable obstacle, in the way of sustaining the exceptions, is, that no' legal evidence, to show that the witness was incompetent, was offered, or that any such evidence is exhibited by the case to have existed. Such evidence
The government, by its officers, waived none of its rights. The record being indispensable, as the basis of a hearing upon the question of incompetency of the witness for infamy, was not before the Court, and could not be treated in any manner as having an entity. We should be doing injustice to the presiding Judge, to hold that he made the legal ruling, as upon a record of a Court of competent jurisdiction, that though the record was sufficient to establish the guilt of the witness of an infamous offence and a judgment thereon, the objection being after the witness began to testify was too late to affect his competency. It was only an intimation of an opinion, upon the supposition that the facts should turn out to be, from an exhibition of the record, as the counsel stated they had just been apprised they wore. There was no hearing, as there could be none. All the right to be heard, upon a production of the record afterwards, before the close of the trial, was preserved to the party accused. The “ intimation” abridged in no degree that right. If the Judge had ruled, upon the production of the record, and such hearing as counsel should have been allowed, that it was too late to exclude the witness before the evidence was closed, exceptions could have been taken, and a question of law duly presented. But the motion was for delay, in order to obtain the
Exceptions overruled. — Judgment on the verdict.