Dom. Rex v. Pourksdorff

1 Super. Ct. Jud. 104

• Court: Massachusetts Supreme Judicial Court
• Decided: August 15, 1764
• Status: Published

Opinion

The Court

unanimously held, No; (³) and ordered the Witness to be sworn, directing the Jury to give what Weight they pleased to her Evidence.

This Evidence alone cleared Pourksdorff by swearing the stole the Goods herself.

3 (3) It seems to have been affirmed that the conviction in this case was for petit larceny. But the only indictment against a woman for larceny, on the record of this term, is against Margaret Knodle, joined with Pourksdorff on a former indictment for grand larceny, to which the pleaded guilty. In either case, however, the decision appears unaccountable, in view of the well-known rules of the common law on this subject, at that time unaltered by statute. A conviction of felony destroyed the competency of a witness. Co. Lit. 6 b. And petit larceny was felony, although it did not produce a forfeiture of land. See 1 Hawk. (ed. of 1795) c. 36, § 6. But the punishment for grand larceny (burning in the hand) restored the competency of the witness (Com. Dig. Testmoigne — Witness A 3), while that for petit larceny had no such effect, for which reason it was subsequently provided in England by 31 Geo. 3, c. 35, “ That no person shall be an incompetent witness by reason of a conviction of petit larceny.”

Whether the distinction between grand and petit larceny was ever adopted or recognized in Massachusetts — quiere. In Commonwealth v. Keith, 8 Met. 531, it was held that a conviction of larceny to the value of forty cents, before a justice of the peace, was sufficient to exclude the witness. And there can be no doubt that any conviction of larceny had this effect until all incompetency from crime was finally abolished by Sts. 1851, c. 233, § 97, & 1852, c. 312, § 60. Commonwealth v. Green, 17 Mass. 515, 537. Commonwealth v. Keith, ub. sup.