Boyd v. State

• Decision Date: 03 March 1895
• Parties: BOYD v. STATE.
• Court: Tennessee Supreme Court

29 S.W. 901

94 Tenn. 505

BOYD v. STATE.

Supreme Court of Tennessee.

March 3, 1895

Appeal from criminal court, Davidson county; J. M. Anderson, Judge.

John Boyd, convicted of housebreaking and larceny, appeals. Reversed.

Joseph G. Branch, for appellant.

The Attorney General, for the State.

SNODGRASS C.J.

The plaintiff in error was indicted for housebreaking and larceny. He pleaded "Not guilty," was tried convicted, and sentenced to imprisonment in the penitentiary for a term of three years, and thereupon appealed in error. There was evidence upon which the conviction might have been rested, though it is not very conclusive.

The material error assigned is in the exclusion of the testimony of Belton Boyd, witness of defendant. Boyd gave evidence to the effect that defendant found certain of the property lost, at the time that charged to have been stolen was taken. Turned over to the state for cross-examination, he was asked by the district attorney "if he had not been convicted of larceny, and had not served his sentence on the county farm." The witness answered that he "had been convicted of larceny in this court, and had served his sentence in the county workhouse." The district attorney then moved that the testimony of this witness be excluded and it was excluded or withdrawn by the court from the consideration of the jury, and witness directed to stand aside. The defendant's counsel demanded that, before the exclusion of the witness' testimony, record evidence of his conviction be produced by the state. The court ruled the statement of the witness himself, as to his infamy, was prima facie evidence of his incompetency, and declined to compel the production of the record. To this ruling the defendant excepted. It is not insisted by the attorney general for the state, here, that this action of the circuit judge would not have been erroneous, had the evidence of the witness been excepted to, formally and specifically, when made; but it is assumed that the manner in which the question is raised, as herein stated, was not equivalent to such an exception, and that there is no error in the action of the circuit judge because of the want of such exception, even if there is error at all, which the attorney general does not concede. We are of the opinion, however, that the exception was sufficient, and that it was error to admit this evidence, even as prima facie, when the objection was made in the form it was,-that the record and judgment of conviction be required to be produced before exclusion of the witness.

Passing the question as to whether the state could rely on an infamous witness to prove his own infamy, and thus establish that he was not competent to testify at all, and the question whether such statement of such witness could be treated as prima facie, we think it could not be accepted at all over objection made, when the exclusion was insisted upon that the record of conviction should be produced. The witness does not say, in fact, that there was any sentence or judgment of infamy rendered. At most, his statement to this effect could be treated as only inferentially equivalent to such statement, giving it its fullest weight. The term "convicted," used in the question, is not treated, in this connection, as synonymous with that of "judgment and sentence of infamy." A mere conviction, without a judgment rendered upon it, is not sufficient. 10 Am. & Eng. Enc. Law, p. 606, and cases cited, note 4. In the case of Com. v. Gorham, 99 Mass. 420, this distinction is further illustrated. It was there declared to be the rule of the common law that the production of the complete record, including the conviction, technically so called, and the final judgment thereon, was necessary, in order to show that a witness offered was incompetent on account of infamy. This rule is founded on the reason that "it is always within the power of the court, on motion in arrest or for a new trial, to set aside a verdict illegally or improperly rendered, at any time before judgment, and the prosecution may, in the end, result in the defendant's acquittal." So, in North Carolina, it is decided that a person is not rendered incompetent to give evidence by a conviction of crime, but only by the judgment on the conviction. State v. Valentine, 7 Ired. 225; Bull. N. P. 392. And see cases cited in note 7, 10 Am. & Eng. Enc Law, p. 607. So one convicted of an infamous offense is a competent witness until after sentence has been passed. U.S. v. Hilliard, 3 McLean, 325, Fed. Cas. No. 15,368; U.S. v. Brockius, 3 Wash. C. C. 99, Fed. Cas. No. 14,652.

But if we treat the remainder of the question, in addition to that as to "whether he had been convicted of larceny," which was "if he had not served his sentence on the county farm," in connection with the answer of the witness that he had been convicted, and had served his sentence in the county workhouse, as equivalent to the offer to prove, and actual testimony of the witness to, both conviction and sentence, we are still confronted with the difficulty that it is insufficient and incompetent. Mr. Phillips says, "In ordinary cases a conviction or sentence must be proved by the production of a record regularly drawn up." 2 Phil. Ev. 356. And in the case of Reg. v. Bourdon, 2 Car. & K. 366, it was adjudged that the evidence of a person who heard sentence passed...