State v. Henson

• Decision Date: 19 November 1901
• Citation: 66 N.J.L. 601,50 A. 468
• Parties: STATE v. HENSON.
• Court: New Jersey Supreme Court

50 A. 468

66 N.J.L. 601

STATE

v. HENSON.¹

Court of Errors and Appeals of New Jersey.

Nov. 19, 1901.

(Syllabus by the Court.)

Error to supreme court Robert Henson was convicted of murder, and brings error. Affirmed.

Beasley & Walker, for plaintiff in error.

Wm. J. Crossley, for the State.

VAN SYCKEL, J. The defendant on his trial for homicide was sworn as a witness on his own behalf. On his cross-examination he was asked whether he had been convicted of assault and battery, also whether he had pleaded guilty to a charge of atrocious assault and battery, and also whether he had pleaded non vult to a charge of petit larceny. To each of these questions he answered "Yes," under objection to their competency. The only question Involved in the case is whether it was error to require the defendant to answer these interrogatories.

Our statute of June 7, 1779 (Paterson's Laws, p. 401), provided that no person convicted of blasphemy, treason, murder, piracy, arson, rape, sodomy, or any infamous crime against nature, bigamy, robbery, conspiracy, forgery, or larceny above the value of $6, shall be admitted as a witness, unless first pardoned, and no person convicted of perjury or subornation of perjury shall be admitted as a witness, although pardoned. This was the positive law until it was changed by the version of 1874. By an act concerning evidence, passed in 1871 (2 Gen. St. p. 1398, § 8), it was provided that, "upon the trial of any indictment of any person charged with crime, the person indicted shall be admitted to testify as a witness upon such trial, if he shall offer himself as a witness in his own behalf." Section 5 of the said evidence act provided that the husband or wife shall be competent and compellable to give evidence in certain cases. Section 6 makes a defendant in a chancery suit 8 competent witness for or against any other defendant. These sections were passed before 1874, as will appear by reference to 2 Gen. St. p. 1398. Our statute prior to 1874 provided, as it now does, that a person convicted of perjury shall not be admitted as a witness, even after pardon. None of the crimes specified in the Paterson act could before 1874 have been proven to affect the credibility of a witness. Such proof was an absolute disqualification. If a defendant on trial of a criminal charge was admitted as a witness on his own behalf, he would have stood before the jury unimpeached and unimpeachable by reason of being previously convicted of crime, and would have been entitled to the credit of any other witness.

The question first considered will be whether before 1874 a person on trial for homicide could have been excluded from testifying on his own behalf if he had previously been convicted of perjury or other crime specified in the Paterson act Section 8, providing that the defendant shall be admitted, is no stronger than section 5, which says that the husband is not only competent but compellable, to testify; nor than section 6, which declares that the person therein named shall be competent to testify. If competent, he must be admitted, and it would be error to exclude him. These sections mean only that the husband, because of the marital relation, or the defendant in chancery, because of being codefendant, or the defendant in an Indictment, because of being such defendant, shall not be Incompetent to testify. It cannot be that the legislature intended that these persons, who before were wholly disqualified to testify, should not only have such disqualification removed, but that they should be the only persons who, when offered as witnesses, could not be rendered incompetent by showing that they had been guilty of an offense which rendered all other witnesses incompetent. And, although the statute before 1874 provided that no person convicted of perjury should be a competent witness even after pardon, the defendant on trial for crime would have been competent witness before pardon. That such an exceptional favor was intended to be granted to a per son on trial for a high crime cannot be conceded, in the absence of language which left no room for doubt. The statute declaring that certain specified persons shall not be admitted as witnesses is equally positive and express with the legislative declaration that a person on trial for crime shall be admitted as a witness on his own behalf. The settled rule of construction requires that effect shall be given to all the statutes on the same subject, and they can be harmonized only by the interpretation above adopted. The fact of a prisoner being on trial did not exclude him from testifying in his own behalf, as it did prior to the passage of the eighth section; but by section 8 one disability was removed, and he was placed on the same plane with other persons offered as witnesses, and subject to the same disabilities. But, if this were not so prior to 1874, the Paterson act, as will hereafter appear, was repealed in 1874, and an independent act was passed, providing that con viction of crime could be shown to affect the credit of a witness. 2 Gen. St. p. 1397, § 1. This is a general act, applying in its terms to all persons, without exception; and it must therefore be held to include a defendant who is admitted as a witness under the aforesaid eighth section, which was passed in 1871. By the act of 1874, above referred to (2 Gen. St. p. 1397, § 1), it is provided that "no person offered as a witness in any action or proceedings of a civil or criminal nature shall be excluded by reason of his having been convicted of crime, but such conviction may be shown on the cross examination of the witness, or by the production of the record thereof, for the purpose of affecting his credit" It is contended that this act was passed with reference to the previously existing law, in order to let in as witnesses those who had been excluded by the crimes specified in the Paterson act, and that it has no relation to crimes other than those in that act enumerated. In my judgment, such a limitation of the act of 1874 is unwarranted. The Paterson act was not repealed by force of the said first section of the act of 1874, because it was inconsistent with it but there was an express repealer of the Paterson act in 1874. 3 Gen. St. p. 3194, pls. 25, 29; Id. p. 3202, pl. 77. The first section of the present act is an independent act and must be construed according to the language employed by the legislature to express its purpose in enacting it The language is that no person shall be excluded by reason of his having been convicted of crime, but such conviction may be shown to affect his credit. It is the conviction of crime which is to affect credibility. The word "crime," being used without qualification, must be held to be used in its general sense, to include any crime. It is not a word of doubtful meaning. If it had been intended that those crimes only which were specified in the Paterson act could be shown for the purpose of impeaching the credit of a witness, the act of 1874 would have expressly provided that the crimes enumerated in the Paterson act should not thereafter disqualify a witness, but might be proven to affect his credibility A draftsman of even ordinary skill would have made the meaning of the act of 1874 indisputable by using the language above suggested. The act of 1874 was framed by the late Chief Justice Beasley, Chief Justice Pepue, and Mr. Cortlandt Parker. To hold that in the use of the word "crime," without qualificatiop or restriction, they intended to employ it in a narrow and restricted sense, would impute to them conspicuous in accuracy in framing this important statute The English judges found no small difficulty in determining precisely the crimes which rendered the perpetrator infamous and incompetent to testify. The difficulty at common law lies in the specification of those offenses. The English...