Rittenberg v. Smith

• Decision Date: 19 May 1913
• Citation: 101 N.E. 989,214 Mass. 343
• Parties: RITTENBERG v. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

214 Mass. 343

101 N.E. 989

RITTENBERG v. SMITH.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1913

COUNSEL

Elisha Greenhood, of Boston, for plaintiff.

Irish & George, of Boston, for defendant.

OPINION

MORTON J.

The plaintiff was a witness and for the purpose of affecting his credibility the defendant offered a record of the United States Circuit Court showing the plaintiff's conviction for fraudulently and knowingly concealing from one Percy A Atherton, trustee in bankruptcy, certain personal property belonging to one Jacob Kerrch, and his sentence to a term of 15 months in the jail at East Cambridge. The plaintiff objected and offered a certificate duly made showing that after the plaintiff had served a part of his sentence the same was commuted by the President to expire at once, and that he was released. The defendant objected to the certificate that it was not a pardon. But the court admitted it and excluded the record of conviction. The defendant excepted. We think that the record should have been admitted.

By R L. c. 175, § 21, it is provided that 'the conviction of a witness of a crime may be shown to affect his credibility.' The first provision touching this matter is found in the Revised Statutes, c. 94, § 56: 'No person shall be deemed an incompetent witness, by reason of having committed any crime, unless he has been convicted thereof in this state; but the conviction of any person, in any court without the state, of a crime which, if he has [had] been convicted thereof within this state, would render him an incompetent witness here, may be given in evidence to affect his credibility.' This related to crimes proof of the conviction of which would render a witness incompetent at common law, and it was expressly provided that proof of the conviction of a witness of such a crime in another state should be admissible here to affect his credibility. See Com. v. Knapp, 9 Pick. 496, 511, 20 Am. Dec. 491. The next statute was St. 1851, c. 233, § 97. The concluding sentence of this section is as follows: 'And the conviction of any crime may be shown, to affect the credibility of any person testifying.' This sentence and the section in which it is found were re-enacted in totidem verbis in St. 1852, c. 312, § 60. With slight changes in phraseology and with changes in the order and connection in which it occurs, the sentence which we have quoted above from St. 1851, c. 233, has appeared in successive reenactments. Gen. Sts. c. 131, § 13; St. 1870, c. 393, § 3; Pub. Sts. c. 169, § 17. And it is plain, we think, that a conviction of any crime, whether a felony or a misdemeanor, may be given in evidence to affect the credibility of a witness. That was in effect so held in Com. v. Hall, 4 Allen, 305, and was expressly decided in Com. v. Ford, 146 Mass. 131, 15 N.E. 153, and Quigley v. Turner, 150 Mass. 108, 22 N.E. 586. There is nothing limiting the conviction which may be shown to one obtained in the courts of this state. In Com. v. Knapp, supra, a conviction obtained in Maine was permitted to be introduced in evidence. And in Gertz v. Fitchburg R. R., 137 Mass. 77, 50 Am. Rep. 285, it was assumed on due consideration that a conviction obtained in the United States District Court for a felony punishable with imprisonment stood on the same footing as a conviction obtained in another...