BUFFINGTON, District Judge.
This is a motion for a new trial, and the reason alleged is the admission of the witness M. 0. Hail to testify, against the objection of the other defendants. Michael Coleman, Thomas Hughes, and M. C. Hall, the witness, were jointly indicted under section 5178, Rev. St., for breaking into and robbing a number of post offices. When the case was called for trial, Hall, who had previously confessed to the government officers his own guilt and that of his codefendants, entered a plea of guilty. The other defendants pleaded not guilty. Hall, being called as a witness by the government, the defendants made objection to him as being incompetent. To support their objection they exhibit to the court a record of Hall’s conviction, in the court of oyer and terminer of Allegheny county, Pa., of the crime of murder in the second degree. In pursuance thereof he was sentenced to 12 years’ imprisonment, which sentence he had served. The objection was overruled. Hall was allowed to testify, and the defendants-were found guilty. The question is again raised on motion for new trial.
The questions bearing on Hall’s competency may be briefly stated in the position taken by counsel. It is contended by defendants’ counsel (1) that in criminal trials in the United States courts in Penn[353]*353sylvania the law of that state, as it existed at tlie passage of the judiciary act of 1789 in reference to tlie admission of evidence, must govern; and (2)- that Hall, having been convicted of and sentenced for the crime of murder, which is an infamous one, would not have been a competent witness in Pennsylvania in 1789, and is therefore now incompetent.
On behalf of the government it is alleged (3) that while the conviction and sentence of Hall in the state court of Pennsylvania, as stated, might have rendered him incompetent in all the courts of that state, yet it cannot have that effect in the United ¡states courts; (2) that the crime of murder in the second degree is statutory in Pennsylvania, and did not exist until the act of 1794, that consequently it could not have rendered a man incompetent in 1789, for it did not exist, and no conviction could be bad for its commission; and (3) that, Hall having served his term of imprisonment, this, under the act of March 31, I860, § 181, amounts to, and is, a pardon, and he is therefore competent.
The first position of defendants’ counsel, via., that the criterion in the admission of evidence is the law a.s it existed in 1789, is well taken. Section 858, Rev. St., after certain provisions not here pertinent, provides:
“In all oilier respects tlie laws oí tlie states in winch the court is held shall tie the rules of decision as to the competency of witnesses in the courts of tlie United States in trials at common law and in equity and admiralty.”
At first view it might seem this included criminal cases, but the contrary 1ms been decided. In U. S. v. Reid, 12 How. 363, the witness, Clemens, was rejected in 3851 in a criminal trial in the circuit court as being incompetent under the law as it existed in Virginia in 1789, although an act passed in 1849 made him competent. This ruling was affirmed by the supreme court; Chief Justice Taney (speaking of section 34 of the act of September 24, 1789, of which section 858, quoted above, is a substantial re-enactment) saying:
“The language of this sod ion cannot, upon any fair construction, ho extended beyond civil east's at common law, as contradistinguished from suits in equity. So Car as concerns rights oC property, it is the only rule that could he adopted hy the courts ot the United States, and the only one that congress had the power to establish; and the section above quoted was merely intended to confer on the courts of the United States the jurisdiction necessary to enable them to administer the laws of the states. But it could not he supposed, without very plain words to show it, that congress intended to give to the states the power of prescribing the rules of evidence in trials for offenses against the United States, for this construction would in effect place ihe criminal jurisprudence of one sovereignty under the control of another.” “The law hy which, in the opinion of ibis court, tlie admissibility of testimony in criminal cases must he determined is the law of the state as it was when the courts of the United States were established by the judiciary act'of 3789.”
Tliis doctrine was followed in the late case of Logan v. U. S., 144 U. S. 302, 12 Sup. Ct. Rep. 617, where Mr. Justice Gray, after a full discussion of tlie question, says;
“For The reasons above stated, the provision of section 858 of the Revised Statutes that 'the laws of tlie states in which the court is held shall he the rules of decision as to the competency of witnesses in the courts of the United [354]*354States in trials at common law and in equity and admiralty,’ lias no application to criminal trials; and therefore the competency of witnesses in criminal trials in the courts of the United States held within the state of Texas is not governed hy a statute of the state winch was first enacted in 1808, but, except as 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.”
There is no doubt that a person convicted of and sentenced for murder, it being an infamous crime, would have been incompetent as a witness in the courts of Pennsylvania in 1789. Conceding, for the purposes of this case, that a conviction and sentence for murder in the second degree would have the same effect, the question then arises, is not Hall a competent witness hy virtue of the 181st section of the act of March 31,1860, (Purd. Dig. p. 469, pi. 357 ?) The section is as follows:
“Where .any person hath been, or shall be, convicted of any felony not punishable with death, or any misdemeanor punishable with imprisonment at labor, and hath endured, or shall endure, the punishment to which such offender hath been, or shall be, adjudged for the same, the punishment so endured sliafi have the like effects and consequences as a pardon by the governor, as to the felony or misdemeanor whereof such person was so convicted.”
As to the effect of a pardon in restoring competency there is no. doubt. It has always been so held in Pennsylvania, (see Hoffman v. Coster, 2 Whart. 468, and Miller, Wit. pp. 18, 19,) and in the courts of the United States, (see Boyd v. U. S., 142 U. S. 450, 12 Sup. Ct. Rep. 292, and Logan v. U. S., 144 U. S. 303, 12 Sup. Ct. Rep. 617.) But is this act in effect a pardon, or is it an enabling statute, passed since 1789, and which comes within the spirit of the court’s prohibition in U. S. v. Reid, supra, where it was said: “Bat no law of a state made since 1789 can affect the mode of proceeding or the rules of evidence in crhuinal cases?” We are of opinion the latter is not the true construction of the statute. It is true, it indirectly changes the incompetency of many persons, hut this follows from the scope of the application of the act, and not from the change of any rule or principle of evidence. The released criminal, who, without being mentioned hy name, is pardoned hy its comprehensive terms, and thereby made competent, is made so in no different way than he would he were he pardoned by name by the executive.
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BUFFINGTON, District Judge.
This is a motion for a new trial, and the reason alleged is the admission of the witness M. 0. Hail to testify, against the objection of the other defendants. Michael Coleman, Thomas Hughes, and M. C. Hall, the witness, were jointly indicted under section 5178, Rev. St., for breaking into and robbing a number of post offices. When the case was called for trial, Hall, who had previously confessed to the government officers his own guilt and that of his codefendants, entered a plea of guilty. The other defendants pleaded not guilty. Hall, being called as a witness by the government, the defendants made objection to him as being incompetent. To support their objection they exhibit to the court a record of Hall’s conviction, in the court of oyer and terminer of Allegheny county, Pa., of the crime of murder in the second degree. In pursuance thereof he was sentenced to 12 years’ imprisonment, which sentence he had served. The objection was overruled. Hall was allowed to testify, and the defendants-were found guilty. The question is again raised on motion for new trial.
The questions bearing on Hall’s competency may be briefly stated in the position taken by counsel. It is contended by defendants’ counsel (1) that in criminal trials in the United States courts in Penn[353]*353sylvania the law of that state, as it existed at tlie passage of the judiciary act of 1789 in reference to tlie admission of evidence, must govern; and (2)- that Hall, having been convicted of and sentenced for the crime of murder, which is an infamous one, would not have been a competent witness in Pennsylvania in 1789, and is therefore now incompetent.
On behalf of the government it is alleged (3) that while the conviction and sentence of Hall in the state court of Pennsylvania, as stated, might have rendered him incompetent in all the courts of that state, yet it cannot have that effect in the United ¡states courts; (2) that the crime of murder in the second degree is statutory in Pennsylvania, and did not exist until the act of 1794, that consequently it could not have rendered a man incompetent in 1789, for it did not exist, and no conviction could be bad for its commission; and (3) that, Hall having served his term of imprisonment, this, under the act of March 31, I860, § 181, amounts to, and is, a pardon, and he is therefore competent.
The first position of defendants’ counsel, via., that the criterion in the admission of evidence is the law a.s it existed in 1789, is well taken. Section 858, Rev. St., after certain provisions not here pertinent, provides:
“In all oilier respects tlie laws oí tlie states in winch the court is held shall tie the rules of decision as to the competency of witnesses in the courts of tlie United States in trials at common law and in equity and admiralty.”
At first view it might seem this included criminal cases, but the contrary 1ms been decided. In U. S. v. Reid, 12 How. 363, the witness, Clemens, was rejected in 3851 in a criminal trial in the circuit court as being incompetent under the law as it existed in Virginia in 1789, although an act passed in 1849 made him competent. This ruling was affirmed by the supreme court; Chief Justice Taney (speaking of section 34 of the act of September 24, 1789, of which section 858, quoted above, is a substantial re-enactment) saying:
“The language of this sod ion cannot, upon any fair construction, ho extended beyond civil east's at common law, as contradistinguished from suits in equity. So Car as concerns rights oC property, it is the only rule that could he adopted hy the courts ot the United States, and the only one that congress had the power to establish; and the section above quoted was merely intended to confer on the courts of the United States the jurisdiction necessary to enable them to administer the laws of the states. But it could not he supposed, without very plain words to show it, that congress intended to give to the states the power of prescribing the rules of evidence in trials for offenses against the United States, for this construction would in effect place ihe criminal jurisprudence of one sovereignty under the control of another.” “The law hy which, in the opinion of ibis court, tlie admissibility of testimony in criminal cases must he determined is the law of the state as it was when the courts of the United States were established by the judiciary act'of 3789.”
Tliis doctrine was followed in the late case of Logan v. U. S., 144 U. S. 302, 12 Sup. Ct. Rep. 617, where Mr. Justice Gray, after a full discussion of tlie question, says;
“For The reasons above stated, the provision of section 858 of the Revised Statutes that 'the laws of tlie states in which the court is held shall he the rules of decision as to the competency of witnesses in the courts of the United [354]*354States in trials at common law and in equity and admiralty,’ lias no application to criminal trials; and therefore the competency of witnesses in criminal trials in the courts of the United States held within the state of Texas is not governed hy a statute of the state winch was first enacted in 1808, but, except as 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.”
There is no doubt that a person convicted of and sentenced for murder, it being an infamous crime, would have been incompetent as a witness in the courts of Pennsylvania in 1789. Conceding, for the purposes of this case, that a conviction and sentence for murder in the second degree would have the same effect, the question then arises, is not Hall a competent witness hy virtue of the 181st section of the act of March 31,1860, (Purd. Dig. p. 469, pi. 357 ?) The section is as follows:
“Where .any person hath been, or shall be, convicted of any felony not punishable with death, or any misdemeanor punishable with imprisonment at labor, and hath endured, or shall endure, the punishment to which such offender hath been, or shall be, adjudged for the same, the punishment so endured sliafi have the like effects and consequences as a pardon by the governor, as to the felony or misdemeanor whereof such person was so convicted.”
As to the effect of a pardon in restoring competency there is no. doubt. It has always been so held in Pennsylvania, (see Hoffman v. Coster, 2 Whart. 468, and Miller, Wit. pp. 18, 19,) and in the courts of the United States, (see Boyd v. U. S., 142 U. S. 450, 12 Sup. Ct. Rep. 292, and Logan v. U. S., 144 U. S. 303, 12 Sup. Ct. Rep. 617.) But is this act in effect a pardon, or is it an enabling statute, passed since 1789, and which comes within the spirit of the court’s prohibition in U. S. v. Reid, supra, where it was said: “Bat no law of a state made since 1789 can affect the mode of proceeding or the rules of evidence in crhuinal cases?” We are of opinion the latter is not the true construction of the statute. It is true, it indirectly changes the incompetency of many persons, hut this follows from the scope of the application of the act, and not from the change of any rule or principle of evidence. The released criminal, who, without being mentioned hy name, is pardoned hy its comprehensive terms, and thereby made competent, is made so in no different way than he would he were he pardoned by name by the executive. While pardons are usually granted by the executive, the pardoning j)OAver by no means is confined to that branch of government. In England pardons by act of parliament were not infrequent, and they are placed on a higher level than the king’s. Blackstone (volume 4, p. 401) says:
“A pardon hy act of parliament is more beneficial than by king’s charter, for a man is not bound to plead it, but the court must, ex oflicio, take notice of it.”
—Which words were quoted with approval by Chief Justice Marshall in U. S. v. Wilson, 7 Pet. 162, where he says:
“The reason why a court must, ex oflicio, take notice of a pardon by act of parliament is that it is considered as a public laAV, having the same effect on the case as if the general law punishing the offense had been repealed or annulled.”
[355]*355From the very nature of government, it requires no reasoning to prove the self-evident proposition that in Pennsyl vania the power of pardon was vested in the legislative branch by the inherent power of the supreme law-making power, and in the executive by constitutional provision. The grant ol! ¡his power to the executive was no limitation on the right of the power granting it to exercise it also. .Because this legislative power oi pardon was dormant, so far as this case is concerned, until 1800, when the act in question was passed, does not stamp it as being of the nature which Justice Taney alluded to. The right of pardon by executive and legislative brandies, with all the well-understood consequences, including restored competency, existed in Pennsylvania in 178b, when congress adopted the then rules of evidence as the criterion for future crimina] trials. It must have had in mind the possibility of pardon by either branch, and the effect thereof. The subsequent exercise of that right by the legislative branch was obviously as proper as by the executive, and a legislative pardon of Hall by special act of assembly (prior to the constitution of 1874) would have restoied his competency. Bueh being the effect if Hall were pardoned by name by the executive, there is no different effect where he is paitoned by description of a class of offenders. Pardons are granted to individual criminals by name; amnesty to classes of offenders or communities. They differ, not in kind, but solely in the number they severally affect. We are of opinion, therefore* that the act of i860, quoted above, was a legislative pardon or act of general amnesty. It is true it does not take effect until after the imprisonment has been served, but that makes it none the less a pardon or its effects different. See Logan v. U. S. supra. That such is the case — tint it was passed as a general pardon, and intended to supply the place of ¡he numerous pardons the governor was called on to issue to restore the compel,ency of convicted persons — is evidenced hv the report of the commissioners of the Penal Code, who, in reporting to the legislature for passage the section quoted, said;
■‘Tills section is now; it is fornido i on tlie principle that, if the offender has fully suffered the punishment. in1 acted by law upon his crimes, he should be restored to society without any further leva! taint * * * in effect, the object of fhifc statute is at present attained through tins pardon of the governor, which is continually invoked io restore such persons to their competency as witnesses, after they have fulfilled the sentence of the law.” >
This citation shows the act v as passed as a substitute for individual pardons, to supply their place, and to make that which had been before a matter of individual grace one of general right.
Regarding this act as a legislative pardon, — that it has the same effect as an executive pardon to 1 fall by name, — we are of opinion his competency is restored, and his testimony was rightly received. The view we have taken renders it needless to discuss the first and second positions taken by the government, as noted. The motion for a new trial is overruled, and the defendants directed to be brought up for sentence.