Cambria Coal Co. v. Teaster

167 S.W.2d 343, 179 Tenn. 472, 15 Beeler 472, 1942 Tenn. LEXIS 44

• Court: Tennessee Supreme Court
• Decided: January 9, 1943
• Status: Published

Opinions

Mr. Justice Prewitt

delivered the opinion of the Court.

This is a case arising* under the Workmen’s Compensation Law, Code 1932, section 6-851 et seq., and the only question for determination is whether or not under Section 11762 of the Code a man who has been convicted of receiving stolen goods, but who has not been declared infamous as a part of the judgment of the court, the minutes not reciting infamy as a part of the judgment, is disqualified after having been released from prison from giving evidence for himself in regard to a com-pensable injury he has received.

A certified copy of the judgment showing that appellee was convicted and sentenced for a year and a day in the penitentiary for larceny is in the record, but the record does not show that it was a part of the judgment of the court that he be rendered infamous. While this question has been before this Court in various aspects, the determinative matter here has not heretofore been directly passed on in any of our reported decisions.

Section 11762 of the Code is, in part, as follows:

“Upon conviction of the crimes of . . . larceny, . . . it shall be part of the judgment of the court that the defendant be infamous, and be disqualified to exercise the elective franchise, and he shall also be disqualified to give evidence.”

In the case of Evans v. State, 66 Tenn. (7 Baxt.), 12, it was held that this statute is one of punishment and is also a rule of evidence which remains unchanged by executive pardon. The Court in that case cites with approval 1 Greenleaf on Evidence, section 378, and uses the following language: “It is also laid down in the note, that when the disability is declared by the express words of the statute, it is not important that it should be made a part of the judgment and entered of record.”

In Burton v. United States, 202 U. S., 344, 26 S. Ct., 688, 694, 50 L. Ed., 1057, 1066, 6 Ann. Cas., 362, the Conrt, in discussing the effect of a judgment with reference to a convicted United States Senator thereafter holding federal office, said: “They might well have been omitted from the judgment. By its own force, without the aid of such words in the judgment, the statute makes one convicted under it incapable forever thereafter of holding any office of honor, trust, or profit under the government of the United States.”

In Fair v. State, 2 Shannon Cas., 481, 482, 483, Mr. Chief Justice Deaderick, speaking for the Court, said:

“Sec. 3812 provides that a person convicted and sentenced for larceny, and other enumerated offenses, is incompetent to give evidence as a witness.

“Sec. 5226 provides that it shall be a part of the judgment of the court that the defendant be infamous and disqualified to give evidence, etc.

‘ ‘ This latter section directs that the judgment of infamy shall be a part of the judgment of the court upon conviction of an infamous crime.

“But we do not understand that the disqualification to testify, etc., depends upon the recital in the judgment on conviction that he is thus disqualified. The 3812th section of the Code declares that persons guilty of larceny, etc., are rendered incompetent to give evidence by conviction and sentence for that offense. It is the legal consequence of the conviction and sentence for the crime, which is affixed to it by our statute, as well as by the common law to numerous cases of a kindred nature. Nor does the incompetency to testify, on the ground of infamy, depend upon the infliction of the infamous punishment, but it is the nature of the crime, and not the kind of punishment inflicted, which renders the party infamous and disqualifies him from giving evidence, 7 7

In the instant case the record was produced and filed, duly authenticated. "We are of opinion that under section 11762 it was mandatory upon the trial court to pronounce a judgment including infamy. No discretion was left in the matter, and we are bound to give effect to the plain legislative mandate.

It results that the judgment of the lower court will be reversed and the petition dismissed with costs.

GreeN, C. J., and Chambliss, J., concur. DeHavew and Neil, JJ., dissent.