Faunce v. People of State

• Decision Date: 30 September 1869
• Citation: Faunce v. People of State , 51 Ill. 311, 1869 WL 5334 (Ill. 1869)
• Parties: ALBERT FAUNCEv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

51 Ill. 311

1869 WL 5334 (Ill.)

ALBERT FAUNCE

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

September Term, 1869.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Recorder's Court of the City of Chicago; the Hon. W. K. MCALLISTER, Judge, presiding.

The facts in this case are fully stated in the opinion of the court.

Mr. E. VAN BUREN, for the plaintiff in error.

Mr. W. BUSHNELL, Attorney General, for the people.

Mr. JUSTICE WALKER delivered the opinion of the Court:

The record shows that plaintiff in error was indicted jointly with Mrs. Stephens, for receiving stolen goods. There are no questions presented upon the pleadings in the case, but a number of errors are assigned on the various rulings of the court. It is first urged, that the court below erred in permitting Moore, who had been convicted of stealing the goods, which the accused were charged with concealing, but who had not been sentenced, to testify against plaintiff in error. Plaintiff's attorney admits, that at the common law there must be a verdict of guilty followed by a judgment, to render a party incompetent to testify, but insists that the rule has been changed by our statute. The 235th section of the criminal code, (Gross' Stat. 218) declares, that each and every person convicted of any of the crimes therein enumerated, of which larceny is one, shall be deemed infamous, and shall forever thereafter be rendered incapable of holding any office of honor, trust or profit, of voting at any election, of serving as a juror and of giving testimony.

This presents the question, what is a conviction? Is it the verdict of guilty, or is it the sentence or judgment rendered on such a verdict? So far as our knowledge of the practice extends under this section since its adoption, the construction has been uniform, that it is the judgment on the verdict of guilty which renders the accused infamous and disqualifies him from testifying as a witness. And such long and uniform construction by the courts and the bar, is entitled to no small weight in the consideration of such a question. Had serious doubts of the correctness of such a construction existed, we must conclude that the question would long since have been presented to this court for determination.

A reference to the 8th sec. art. 4 of our constitution will show the construction the framers of that instrument placed on the term conviction. After conferring upon the governor the power to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment, it declares that “he shall, biennially, communicate to the general assembly each case of reprieve, commutation or pardon granted, stating the name of the convict, the crime for which he was convicted, the sentence and its date, and the date of commutation, pardon or reprieve.” This provision manifestly contemplates a judgment or sentence as necessary to a conviction, or why require, in each case of conviction and reprieve, commutation or pardon, to report the sentence and its date? If the verdict of guilty constituted the conviction, they would not have required in every case the sentence and its date to have been communicated to the general assembly. They, no doubt, acted upon the uniform construction given to the statute above referred to, which was then and had long been in force.

An examination of the adjudged cases in the various States of the Union, where substantially the same laws are in force, will show that it is not the commission of the crime, nor the verdict of guilty, nor the punishment, nor the infamous nature of the punishment, but the final...