State v. Wendel

115 A. 390, 96 N.J.L. 495, 1921 N.J. LEXIS 202

• Court: Supreme Court of New Jersey
• Decided: November 14, 1921
• Status: Published

Opinions

The opinion of the court was delivered by

Tren chard, J.

The plaintiff in error was convicted upon an indictment for perjury, and that conviction was affirmed in the Supreme Court.

The only matter argued in the Supreme Court, and the only matter argued here, related to, the admission in evidence of the testimony oí three witnesses produced by the state, each of whom had been indicted for perjury, and had been arraigned and pleaded guilty, prior to the trial of the indictment in question.

No objection was made to the testimony of these witnesses until-after it appeared by the cross-examination in each instance that they liad been convicted of perjury, and then counsel moved to strike it out upon the ground that it was incompetent in view of section 18 of the Crimes, act. Comp. Stat., p. 1748.

The Supreme Court considered that the motion to strike out the testimony was properly denied for two reasons, the first of which was that the motion came too late. But we prefer to express no opinion as to that ground.

We prefer to rest our decision upon the second reason given in the Supreme Court, which was the broad ground that the testimony was competent.

As we have indicated, the argument of the plaintiff in error is that a witness is incompetent when it appears in the case that he had been convicted of perjury, and that the effect of that conviction was to render him incapable thereafter of giving testimony in any court of this state, this being the provision of section 18 of the Crimes act of 1898. Pamph. L., p. 798. But we are of the opinion that this provision was abrogated by the first section of our act concerning evidence, as revised in the year 1900 (Comp. Stat., p. 2217), which provides that—

“No person offered as a witness in any action or proceeding 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.”

Such is the logic and effect of our decision in State v. Henmn., 66 N. J. L. 601. Therein the effect of the use of the word “crime,” in the first section of the act concerning evidence (Rev. 1874; Gen. Stat., p. 1397), was considered, in full view of the fact, which was expressly recognized that prior to such revision the statute law provided that no person convicted of perjury should be admitted as a witness. It is to be noted that the language of the first- section of the Revision of 1874 is identical with that of section 1 of our Evidence act (Rev. 1900; Comp. Stat., p. 2217)'now under consideration. In that case Mr. Justice'Van Syckel, speaking for this court, said:

“The first section of the present act (Rev. 1874) 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 Ms credit. * * * 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.”

It is also to be noted that our construction of the statute is in harmony with that of the Supreme Court in State v. Magyar, 114 Atl. Rep. 252.

The judgment below will be affirmed.