Diehl v. Rodgers

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: MITCHELL, J.
• Citation: 32 A. 424,169 Pa.St. 316
• Parties: DIEHL et al. v. RODGERS et al.
• Decision Date: 18 July 1895

32 A. 424
169 Pa.St. 316

DIEHL et al.
v.
RODGERS et al.

Supreme Court of Pennsylvania.

July 18, 1895.

Appeal from court of common pleas, Allegheny county.

Feigned issue between Mrs. Jane Diehl and another against Annie C. Rodgers and others to try the validity of the will of Robert C. Elliott, deceased. From a judgment for plaintiffs, defendants appeal. Affirmed.

The assignments of error were directed to two points, viz. the admission of Robert H. Lindsay to testify as a witness, and the instruction to find for plaintiffs.

W. D. Moore, John M. Rourke, James Fitzsimmons, and James McF. Carpenter, for appellants.

J. S. & E. G. Ferguson and Burleigh & Harbison, for appellees.

MITCHELL, J. The main question is the competency of the witness Lindsay, who had been convicted of perjury, but pardoned by the governor, prior to the events to which he testified. The general rule is that a pardon does away with the future consequences of the criminal act, as completely as if it had never been committed. It is said in a case which will be noticed more fully hereafter (Houghtaling v. Kelderhouse, 1 Parker, Cr. R. 241) that the doctrine of restoration of competency is modern, and that the authority of Coke is against it, but that, later, Holt and others established it Passing by the

32 A. 425

obvious doubt whether any doctrine established by Lord Chief Justice Holt can fairly be called modern, we find that what Coke says in Brown v. Crashaw, 2 Bulst. 154, is, citing 11 Hen. IV. fol. 41b, that one attainted of felony, but pardoned, is not a competent witness for poena mori potest, culpa perennis erit. The authorities, however, are unanimously against this maxim: "If the king pardon these offenders, they are thereby rendered competent witnesses, though their credit is to be still left to the jury, for the king's pardon takes away poenam et culpam in foro humano." 2 Hale, P. C. 278. "It is now settled that a pardon removes, not only the punishment, but all the legal disabilities consequent on the crime." 2 Russ. Crimes, 975; 7 Bac. Abr. (Bouvier's Ed.) tit. "Pardon," H, p. 416. In England, however, a special exception is made in the case of perjury, where a distinction is taken between conviction on an indictment at common law and on an indictment under the statute of 5 Eliz. c. 9, which declares that no person so convicted shall thenceforth be received as a witness, to be deposed and sworn in any court of record, until such judgment be reversed. 2 Russ. Crimes, 604. The distinction appears to have been first made by Lord Chief Justice Holt, who, in Rex v. Greepe, 2 Salk. 514, says, "Where one is convicted upon the statute, it is part of the judgment to be disabled [to be a witness], but at common law it is only a consequential disability;" and he accordingly held that the king's pardon removed the latter disability, but not the former. This ruling he repeated in Rex v. Crosby, Id. 689; Rex, v. Ford, Id. 691; and Anon., 3 Salk. 155. It is now accepted as the settled law in England. "A pardon removes, not only the punishment, but all the legal disabilities consequent on the crime, * * * wherever the disability is a consequence of the judgment; but where it is declared by an act of parliament to be part of the punishment, as in the case of perjury on 5 Eliz. c. 9, the king's pardon will not make the witness competent." 2 Russ. Crimes, 975. The American text writers have generally followed this distinction, without question, and apparently without much consideration. The ablest discussion to be found is in an article published in 1834 in 11 Am. Jur. 356, signed "G.," which perhaps may be safely conjectured to be by Prof. Greenleaf, who was then writing his work on Evidence, in which he adopts the same view, and quotes the article at considerable length. The writer, whether Greenleaf or another, follows the English distinction, but says, with accurate logic and great candor: "The soundness of the reason is not as apparent as the justness of the exception. * * * If the culprit be sentenced to a fine and imprisonment and the pillory, and the whole offense is pardoned, by what authority shall any of these punishments be inflicted? And if, instead of the pillory, he is sentenced to incapacity as a witness, is the case altered? The pardon takes away the effect of the judgment, and nullifies all its consequences. Of what importance is it, then, whether the incapacity makes part of the judgment by statute, or follows it by the common law? * * * It would be more satisfactory, therefore, if a reason for this exception could be found independent of the form in which the sentence may have been awarded." Instead, however, of pursuing the true course, and, where the reasons of a rule are altogether unsatisfactory, inquiring carefully into the soundness of the rule itself, ratio legis est anima legis, he proceeds ingeniously to find a reason in the idea that while the disqualification to be a witness is a part of the punishment, and may operate severely against the convict, yet it may also be regarded as a rule of evidence which is within the legislative province to adopt or remove.

The American courts, however, have not accepted the rule or its reasons as unquestioningly as the text writers. The diligence of counsel, and my own investigations, have only succeeded in finding two cases which have followed the English rule. In Houghtaling v. Kelderhouse, 1 Parker, Cr. R. 241, the point was expressly raised and decided, on the line of argument, and largely on the authority, of the article in the American Jurist above quoted, but also on the words of the New York statute, that one convicted of perjury shall not be received as a witness, unless the judgment be reversed, while in regard to other offenses the incompetency is declared unless pardoned; showing that the legislature had pardons in contemplation,—a point that will be noticed hereafter in connection with our own statute. The other case is Foreman v. Baldwin, 24 Ill. 298, which simply rules...