Lyford v. Farrar

31 N.H. 314

• Court: Superior Court of New Hampshire
• Decided: July 15, 1855
• Status: Published

Opinion

Bell, J.

The rule, in England, relative to the competency of a witness to testify who has been convicted of crime, is thus stated by Phillips, (1 Ev. 17.)

“ There are many offences which our law considers such blemishes on the moral character as to incapacitate the party from giving evidence. Of this kind are treason, prsemunire, and the whole class of offences which come under the denomination of felony.” Co. Litt. 6, b.; Com. Dig. Testmoigne, A. 5; 2 Hale’s P. C. 277; Fort’s Rep. 509; Jones v. Mason, 2 Stra. 833; Walker v. Kearney, 2 Stra. 1148, are cited as authorities for this rule, to which may be added Pendock v. Macinder, 2 Wils. 18; S. C. Willes 667; Bull’s N. P. 292; 1 Ch. Cr. Law 600; 1 Leach’s C. L. 443, n. a.; 2 Saund. Pl. & Ev. 940; 1 Greenl. Ev. 418; 3 Stark. Ev. 715; Arch. Cr. Pl. & Ev. 94; Hawk. P. C., B. 2, ch. 46, § 19.

“ Petty larceny,” says Phillips, “ was formerly an exception to the rule, which disqualifies for conviction of felony, by statute 31 Geo. III, ch. 35, (1791.) Before this statute, petty larceny disqualified. See 2 Hale’s P. C. 277; Pendock v. Macinder, Willes 667, S. C.; 2 Wils. 18. But the distinction between grand and petty larceny having been abolished, and the latter being made subject to all the incidents of the former, that exception no longer exists, [even in England.] Stat. 7 and 8 Geo. IV. ch. 29, § 2.”

No such exception has ever existed here, and the common law still governs the tribunals of this country, unless where it has been changed by State legislation. State v. Gardner, 1 Root 485; Carpenter v. Nixon, 5 Hill 260; Commonwealth v. Keith, 8 Met. 531.

The last case is almost precisely similar to the case before us, and the witness was held incompetent.

Motion for a new trial denied.