Curtis v. Cochran , 50 N.H. 242 ( 1870 )

Doe, J.

“ If the king pardon these offenders, they are thereby rendered competent witnesses, tho their credit is to be still left to the jury, for the king’s pardon takes away pcenam and culpam in foro humano * * * but yet it makes not the man always an honest man.” 2 Hale P. C. 278; King v. Castlemain, 7 How. St. Tr. 1109, 1110; King v. Rookwood, 13 How. St. Tr. 185, 186; 1 Stark. Ev. 99; Peake Ev. 132; McNally Ev. 232, 234; 1 Gilbert Ev. (by Lofft, ed. of 1791) 260; 1 Phillipps Ev. (old ed.) 29; 1 Gr. Ev., § 377; 2 Saund. Pl. and Ev. 1275; 1 Arch. Cr. Pr. and Pl. 155; 1 Arch. N. P. 29; Bac. Abr. Pardon (H); 3 Wooddeson Lectures on Laws of Eng. 284; Wharton Cr. L. (6th ed.) § 765; 1 Bishop Cr. L. § 763; 2 Hargrave Juridical Arguments 221, 233, 260, 267; 2 Russell on Cr. 975, note; Roscoe Cr. Ev. 137, note; 2 Am. L. Reg. (N. S.) 488; U. S. v. Jones, 2 Wheeler Cr. Cas. 451; Baum v. Clause, 5 Hill 196; Carpenter v. Nixon, 5 Hill 260; Newcomb v. Griswold, 24 N. Y. 300; Gardner v. Bartholomew, 40 Barb. 325; Com. v. Green, 17 Mass. 515, 550, 551; Com. v. Rogers (Pamph. Rep.) 39, 148, 179, 180, 231, 249, 256, 271; Hoffman v. Coster, 2 Whart. 453, 462; Howser v. Com. 51 Penn. St. 332, 340; Anglea v. Com. 10 Grat. 696, 698, 699, 703, 704; 2 Hume Cr. L. 344; Glassford Ev. 413.

A person convicted of an offence known in law as infamous, is incapacitated to be a witness, because, when his guilt is established by the conviction, his general character for truth is shown to be so bad that his testimony would be useless or dangerous. 1 Gr. Ev. § 372; 1 Stark. Ev. 94. That is the theory of the common law. The conviction is an impeachment and condemnation of his general character for truth. A pardon is not presumed to be granted on the ground of innocence or total reformation. Cook v. Middlesex, 2 Dutcher 326, 331, 333; 4 Bl. Com. 397, 400; 3 Inst. 233, 238; 2 Hawk. P. C., ch. 37, § 8; Com. v. Holloway, 44 Penn. 210. It removes the disability, but does not change the common-law principle that the conviction of an infamous offence is evidence of bad character for truth. The general character of a person for truth, bad enough to destroy his competency as a witness, must be bad enough to effect his credibility when his competency is restored by the executive or legislative branch of the government.

If the party against whom an infamous person is offered as a witness, had the election of using the conviction as a ground of exclusion or of an attack upon the credit of the witness, the testimony of the witness might be warped by the fear of impeachment and the hope of avoiding it; and that may be a sufficient reason for not allowing such election.

When the character of a pardoned witness is impeached by the record of his conviction, it would seem that his character may be sustained by appropriate evidence.

Judgment on the verdict.