Gambar halaman
PDF
ePub

credibility of the witness, though it was not made by the prosecuting attorney, if it was made in his presence and the witness was a person of weak mind.3 But a conviction upon the uncorroborated evidence of a witness who admits that he has been promised immunity, insufficient to sustain a conviction."

SECTION 57. HUSBAND AND WIFE.

It was the general rule of the common law that neither husband nor wife was a competent witness for or against the other. This rule was based upon grave reasons of public policy, having reference to the preservation of that hallowed confidence and mutual happiness of parties joined together in the marital relation. This rule was subject to several exceptions to be hereafter noted.

This is a matter now regulated by statute in the various jurisdictions, which declare that neither husband or wife shall be a competent witness for or against each other, except in certain cases therein enumerated. Most of these exceptions, being in express derogation of the common law, are strictly construed, and in order to make the witness competent, it must be shown that he or she is clearly within the exception.5

Among these exceptions are: (1) Where the action is between the husband and wife; (2) Where the husband or wife has acted as the agent of the other; (3) Where the husband or wife would, if unmarried, have been plaintiff or defendant; and (4) Where the litigation concerns the separate property of the wife.

Conley vs. People, 170 Ill., 587. Cochran vs. People, 175 Ill., 28, citing Campbell vs. People, 159

Ill., 9, and Hoyt vs. People, 140 Ill., 588.

Huot vs. Wise, 27 Minn., 68.

SECTION 58. CHILDREN.

The competency of children under fourteen years of age to testify rests in the discretion of the court, and depends mainly on the moral sense, intelligence and understanding of the individual. It is the intelligence and understanding, and not the age, of the person of tender years, which must govern in determining his competency as a witness. If it be manifestly shown that a child, even six or seven years old, knows the difference between right and wrong, and understands the nature and obligation of an oath, and that he must speak the truth, such child is a competent witness. What weight is to be given to the testimony of a boy of such tender years, is a matter for the jury to determine.

[blocks in formation]

The fact that a witness is not of sound mind does not in itself constitute ground for his exclusion. His testimony can properly be excluded only when his affliction is such that he is unable to retain in his mind a recollection of that which he has seen or heard, and about which he is called to testify, or that he is unable to distinguish between right and wrong. He must, of course, have sufficient mental capacity and understanding to comprehend and appreciate the obligation of an oath, and to give a reasonably accurate statement of what he has seen or heard, bearing on matters at issue in the proceeding on trial. The weight to be accorded the testimony of such witness is a question exclusively for the jury.

• Featherstone vs. People, 194 Ill.,

325.

'Cannady vs. Lynch, 27 Minn.,

435; Walker vs. State, 97 Als., 85.

SECTION 60. FELONS AND CONVICTS.

At common law, persons convicted of infamous crimes were incompetent as witnesses. Infamous crimes are generally defined to be those punishable by death or imprisonment in the penitentiary. The reason was, that men who have been guilty of such heinous crimes had become so depraved as to be unworthy of belief; that the individual has sunken so low in the moral realm as to be insensible to the sanctity of an oath, and to be reckless in the handling of truth; that the credit of his oath is overcome by the stain of his iniquity. To disqualify him, even at common law, however, he must have been adjudged guilty of such crime. It is the record of the judgment of a court of competent jurisdiction, passing sentence upon him, that disqualifies him as a witness. Such witness could testify, however, in his own behalf.

This disqualification has generally been removed by statute, but it may be shown as strongly affecting the credibility of the witness.

8

SECTION 61. INFIDELS AND ATHEISTS.

At the common law, a person who had no religious belief, and who did not acknowledge, but openly and avowedly denied, the existence of a Supreme Being, and who did not feel himself accountable to any moral punishment here or hereafter, even though he acknowledged his amenability to the criminal law, could not become a witness. The unbelief of such person is best established by others. The proper question to be asked of a witness, is whether he believes in God, the

People vs. McGloin, 91 N. Y., 241; Com. vs. Gorham, 99 Mass., 420.

• Central Military Tract R. K. Co.

vs. Rockafellow, 17 Ill., 541.

obligation of an oath, and in a future state of rewards and punishments.1o

According to the great weight of modern authority, it is now held that it is not necessary that the witness should believe in the doctrine of receiving punishment after death for crimes done in this life, so long as he believes in the existence of a God and a future state and recognizes the binding force of an oath." Many statutes have been enacted in the American States removing the disability that existed at common law on account of religious belief or want of religious belief.12

SECTION 62. QUAKERS.

McKelvey, in his work on Evidence, Sec. 213, says: "In the case of the sect of Quakers, so obnoxious to the early English churchmen, whose members refused to take the oath, some little difficulty was experienced, in bringing them within the rule of competency; so much, in fact, that a special statute 13 was passed allowing Quakers to affirm where other persons were required to take the oath. But this did not extend their competency to criminal cases. Later, however, all restriction was removed, and a form of oath established for any person not competent or not desiring to take the oath." 14 By statutes in most of the States Quakers are allowed to solemnly affirm instead of the regular oath.

10 1 Starkie on Evidence, 82, note. 11 Noble vs. People, 1 Ill., 54;

Hunscom VS. Hunscom, 15 Mass., 184; Clinton vs. State, 33 Ohio 27; Hutton vs. Seaver, 26 Pa. St., 274; Arnold vs. Estate of Arnold, 13 Vt., 362. " Arizona; California; Colorado; Connecticut; Florida; Georgia; Illinois; Indiana; Iowa; Kansas; Kentucky; Maine; Mass

achusetts; Michigan; Minnesota; Mississippi; Montana; Nebraska; Nevada; New Mexico; New York; North Dakota; Oregon; Rhode Island; Tennessee; Texas; Utah; Vermont; Virginia; Washington; West Virginia and Wisconsin. 13 7 and 8 Wm. III, c. 34. 14 31 and 32 Vic., c. 68.

SECTION 63. INDIANS.

By statute, in the early days many states refused to allow Indians to testify for or against white persons; 15 but these statutes have all been repealed. The common law made no discrimination against the Indian. At the present time, in all of the states, he is permitted to testify.

SECTION 64. CHINAMEN.

Formerly, in California, by statutory enactment, a Chinaman was rendered incompetent to testify for or against a white person on trial in a criminal case.10 That act is no longer in force, and everywhere Chinamen are competent to testify in all matters, except that they are excluded by federal statute from testifying that a fellow-countryman attempting to re-enter the United States had been engaged as a merchant previous to his departure therefrom."

[blocks in formation]

It was also formerly held in some of the southern states that a negro was incompetent to testify for or against a white person; 18 but the courts of such states have since generally held that the Act of Congress known as the "Civil Rights Bill" restored their competency and placed them on an equal footing with other witnesses.

SECTION 66. GRAND JURORS.

Legal writers and sometimes courts have laid down the broad rule that members of the grand jury cannot

15 Harris vs. Doe, 4 Blackf. (Ind.), 369; Carroll vs. Pathkiller, 3 Port. (Ala.), 279.

10 Speer vs. Yup Co., 13 Cal., 73; People vs. Hall., 4 Cal., 399; People vs. Jones, 31 Cal., 565.

17 Li Sing vs. United States, 180
U. S., 486; Tong Yue Ting vs.
United States, 149 U. S., 698.
18 Dupree vs State, 33 Ala., 380;
Heath vs. State, 34 Ala., 250;
Smyth vs. Oliver, 31 Ala., 39.

« SebelumnyaLanjutkan »