McCoy v. United States

247 F. 861, 160 C.C.A. 83, 1918 U.S. App. LEXIS 1820

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 12, 1918
• Docket: No. 3082
• Status: Published

Opinions

EVANS, District Judge.

The plaintiff in error was convicted in the District Court for the Southern District of Florida of conspiracy to defraud the United States, by removing and putting on the market large quantities of distilled spirits without the payment of the tax thereon. A witness who delivered material testimony against the defendant had been previously convicted in the United States District Court for the Western District of Arkansas, under an indictment charging him with the re-use of internal revenue stamps, and sentenced to nine years’ imprisonment in the Eeavenworth penitentiary; and was undergoing this sentence at the time he was offered as a witness. Objection was made to his competency as a witness because he was a convicted felon. The objection was overruled, and the witness was permitted to testify.

The courts of the United States uniformly held from the time they were created that the rules of evidence in criminal cases were the rules which were in force in the respective states when the Judiciary Act of 1789 was passed. This proposition was first challenged in the Supreme Court of the United States some 60-odd years after the passage of the Judiciary Act of 1789, and the court adhered to the practice hitherto followed. United States v. Reid, 12 How. 361, 13 L. Ed. 1023. After reference to the Judiciary Act of 1789 and the Crimes Act of 1790 (Act April 30, 1790, c. 9, 1 Stat. 112), Chief Justice Taney in that case said:

“Yet, as the courts of the United States were then organized, and clothed with jurisdiction in criminal cases, it' is obvious that some certain and es-. tablished rule upon this subject was necessary to enable the courts to administer the criminal jurisprudence of the United States. And it is equally obvious that it must have been the intention of Congress to refer them to some known and established rule, which was supposed to be so familiar and well understood in the trial by 'jury that legislation upon the subject would be deemed superfluous. This is necessarily to be implied from wbat these acts of Congress omit, as well as from what they contain. But this could not.be the common law as it existed at the time of the emigration of the colonists, for the Constitution had carefully abrogated one of its most important provisions in relation to testimony which the accused might offer. It could not be the rule which at that time prevailed in England, for England was then a foreign country, and her laws foreign laws. And the only known rule upon the subject which can be supposed to have been in the minds of the men who framed these acts of Congress was that which was then in force in the respective states, and which they were accustomed to see in daily and familiar practice in the state courts.”

Half a century after the pronouncement in the Reid Case, supra, the question of the competency of witnesses in criminal trials in the courts of the United States was again before the Supreme Court of the United States in the case of Logan v. United States, 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429. In that case the.trial occurred in the District Court for the Northern District of Texas. A witness convicted and sentenced for felony, in the superior court of Iredell county, state of North Carolina, was permitted to testify against an objection as to his competency because of his previous conviction of a felony. In ruling on this exception, the Supreme Court examined the law of Texas as it existed at the time of the incorporation of that state info the Union and the legislation of the Congress of the United States, and reached the conclusion that, inasmuch as there had been no express legislation by Congress on the subject, modifying or changing the law of Texas as it existed at the time of -the annexation of that state, the statute of Texas existing at the time that state became a part of the Union controlled, and held the witness to be competent. The statute of the Republic of Texas had adopted the common law of England, so far as the same was not inconsistent with the laws of the Republic of Texas. There was a later statute, enacted by the state of Texas after that state came into the Union, and this later statute was urged as furnishing the rule prescribing the competency of witnesses, rather than that in force at the time of the annexation of Texas. Theffiolding of the court was expressed as follows (144 U. S. at page 303, 12 Sup. Ct. 630, 36 L. Ed. 429):

“The competency of witnesses in criminal trials in tlie courts of the United States held within the state of Texas is not governed by a statute of the state which was first enacted in 1858, but, except so far as Congress has made specific provisions upon the subject, is governed by the common law, which, as has been seen, was the law of Texas before the passage of that statute and at the time of the admission of Texas into the Union as a state.”

We thus deduce the rule, as expounded in this case and in the Reid Case, to be that, in the absence of specific legislation by Congress, the rules of evidence in the courts of the United States affecting the competency of witnesses in criminal trials is the law of the state in which the trial occurs as it existed when that state became a part of tlie Union.

Although the Congress of the United States by legislation has disqualified as a witness one convicted of perjury or subornation of perjury, and has made specific provisions for a defendant to testify at his own request, and for a husband or wife to testify in any prosecution for bigamy or unlawful cohabitation, yet no legislation has come under our notice affecting the rule prescribed in the Reid and Logan Cases on the subject of the competency of a witness who had been previously convicted of a felony.

When the territory of Florida applied for admission into the Union, its citizens had, in 1839, adopted a Constitution, which contained the following provision, in section 1, article 17, thereof:

“That all laws and parts of laws, now in force, or which may be hereafter passed by the government and legislative council of the territory of Florida, not repugnant to the provisions of this Constitution, shall continue in force, until by operation of their provisions or limitations, the same shall cease to be in force, or until the General Assembly of this state shall alter or repeal the same,” etc.

By the act of March 15, 1843 (Laws 1843, No. 37), it was enacted by the territorial Legislature of Florida:

“That no person shall bo deemed an incompetent witness by reason of having committed any crime, unless he has been convicted thereof in this territory; but the conviction of any person, in any court without the territory, of a crime which, if he had been convicted thereof within this territory, would render him -an incompetent witness here, may be given in evidence to affect his credibility.”

Florida was admitted'into the Union as a state on March 3, 1845'; and on the admission of Florida as a state the organization of the government under the Constitution became complete, and every department became filled at once, by the adoption of territorial laws and the appointment of territorial officers, for the time being. Benner et al. v. Porter, 9 How. 236, 13 L. Ed. 119.

The conclusion, then, is inevitable that the witness to whom objection was made was competent to testify under the Florida territorial act of March 15, 1843, because that act, under the provisions of section 1, article 17, of the Constitution of 1839, immediately became the law of the state of Florida on March 3, 1845, the date of the admissioii of Florida into the Union as a state.

We have carefully examined the other assignments of error, and they are without merit, and are of such character as not to require any detailed reference.

The judgment is affirmed.