Davidson v. Flint
| Decision Date | 17 November 1910 |
| Citation | 111 Va. 394,69 S.E. 328 |
| Court | Virginia Supreme Court |
| Parties | DAVIDSON v. WATTS & FLINT. |
1. Pleading (§ 104*)—Plea to Jurisdiction —Plea in Person—Necessity.
A plea to the court's jurisdiction must be pleaded in person, and not by attorney; the appearance of an attorney being by leave of court, and hence an acknowledgment of jurisdiction.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 214; Dec. Dig. § 104.*]
2. Witnesses (§ 345*)— Credibility —Punishment for Felony—Effect on Credibility.
While Code 1904. § 3898, providing that, except as otherwise provided, one convicted of felony shall not be a witness unless he has been pardoned or punished therefor, restores the competency as a witness of one punished for a felony, it does not prevent his conviction and punishment from being shown to affect his credibility.
[Ed. Note.—For other cases, see Witnesses, Cent. Dig. § 1127; Dec. Dig. § 345.*]
3. Appeal and Error (J 1056*) — Harmless Error—Exclusion of Evidence — Corroborative Evidence.
The rule that error in excluding corroborative evidence is not reversible only applies where the record shows that it could not affect the verdict, so that error in excluding evidence of a witness' conviction of, and service of sentence for, grand larceny, to affect his credibility, in an action for the destruction of wheat stacks by a fire from a threshing machine engine, cannot be said to have been harmless, where such witness' testimony went to the question of whether the spark arrester of the engine was in place, which was a material question, and the other evidence as to such matter was contradictory.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4187; Dec. Dig. § 1056.*]
Error to Corporation Court of Buena Vista.
Action by Watts & Flint against L. W. Davidson. Judgment for plaintiffs, and defendant brings error. Reversed.
G. D. Letcher, for plaintiff in error.
H. S. Rucker and Willis & Robertson, for defendants in error.
The first error assigned is to the action of the court in sustaining the objection made to a plea to the jurisdiction of the court.
The plea was properly rejected by the court. It was pleaded by attorney, instead of in person, and the settled rule of practice in this state is that such a plea must be pleaded in proper person, and not by attor-ney. The reason usually assigned for such requirement is that an appearance by attorney is regarded as pleading by leave of the court, and hence is an acknowledgment of its jurisdiction. Hortons & Hutton v. Townes, 6 Leigh, 47; 4 Min. Inst. (1st Ed.) 625, 626; 1 Cyc. 125, 126.
A Mr. Mazingo, one of the witnesses of the defendants in error, on cross-examination was asked if he "had not been convicted and served a term in the Virginia penitentiary for stealing." The question was objected to, but the witness answered that he had, before the objection was passed upon. The court sustained the objection, and directed the jury not to consider the question and answer. This action of the court is assigned as error.
By section 3898 of the Code it is declared that, "except where it is otherwise provided, a person convicted of felony shall not be a witness, unless he has been pardoned or punished therefor, and a person convicted of perjury shall not be a witness although pardoned or punished."
It is insisted by the defendants in error that the intent and effect of the section quoted was "to wipe away the entire disability of the witness and place him in the eyes of the law on the same moral basis and civil status as though he had never been convicted of crime." In other words,-the contention is that the effect of the section quoted upon a pardoned or punished convict, except where the offense is perjury, is equivalent to a reversal of the judgment of conviction.
While this precise question does not seem to have been involved in any case decided by this court, substantially the same contention was made in the case of Anglea v. Commonwealth, 10 Grat. 696. where the convict had been pardoned, and the question was whether or not he was liable for the costs incurred by the commonwealth in the prosecution. The court, in considering that question, reviewed the authorities, English and American, pretty extensively, and reached the conclusion that a pardon did not have the effect of a reversal of the judgment of conviction; that, while the pardon relieved the party of all penalties directly annexed to the crime, it did not relieve him of all of its consequences. In discussing the difference in the effect of a pardon and a reversal of the judgment of conviction, Judge Lee, speaking for the court, said, among other things (pages 703, 704) that
While this expression as to the effect of a pardon upon the party's competency as a witness was not necessary to the decision of the question involved in that case, it was the opinion of a very able judge, concurred in by the whole court, and is sustained by the great weight of authority. 1 Phil, on Ev. 35; 2 Starkie on Ev. 721; 2 Elliott on Ev. § 793; 1 Greenleaf's Ev. (16th Ed.) § 461b, p. 578; 30 Am. & Eng. Enc. L. (2d Ed.) 1085.
In Langhorne v. Com., 76 Va. 1012, 1016, the right to impeach a witness on cross-examination, by proving that he has been convicted of an offense which involved his character for truth, was impliedly recognized. Though the action of the trial court...
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Burford v. Commonwealth
...that penal statutes are to be strictly construed, and cannot be enlarged or their effect extended by construction." In Davidson v. Watts, 111 Va. 394, 69 S.E. 328, 329, decided in 1910, it was held that a person who had been convicted of grand larceny and had served the punishment therefor ......
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Chrisman v. Com., 0396-85
...not an offense is infamous, it seems, is to be determined by the character of the crime and not by its punishment. Davidson v. Watts, 111 Va. 394, 397, 69 S.E. 328, 329 (1910). Justice Holt agreed that it was not the punishment which makes a crime infamous, but rather the nature of the crim......
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Burford v. Commonwealth
...that penal statutes are to be strictly construed, and cannot be enlarged or their effect extended by construction." In Davidson Watts, 111 Va. 394, 69 S.E. 328, in 1910, it was held that a person who had been convicted of grand larceny and had served the punishment therefor was, by the stat......
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Smith v. Commonwealth
...to prove his conviction of a felony or a crime involving moral turpitude, by his admission on cross-examination. Davidson v. Watts & Flint, 111 Va. 394, 397, 69 S.E. 328; Smith v. Commonwealth, 155 Va. 1111, 1121, 156 S.E. 577; Bell v. Commonwealth, 167 Va. 526, 538, 189 S.E. 441; Hicks v. ......