17 Mass. 515

March, 1822

Suffolk and Nantucket County

Present: Parker, C.J., Thatcher, Jackson, Putnam, & Wilde, JJ.

This Court has power to grant a new trial, on the motion of one convicted of a capital offence, sufficient cause being shown therefor.

The admission of illegal testimony against the prisoner on his trial, after objection by his counsel, would be a good cause for granting a new trial.

Objections to the competency of a witness, founded on a conviction of crime, must be made at the trial, and when the witness is offered to be sworn; and must be supported by the record of the conviction and judgment.

The conviction of an infamous crime in a foreign country, or in any other of the United States, does not render the subject of such conviction an incompetent witness in the courts of this state.

THIS was a motion for a new trial. The prisoner, Green, and one Howard Trask, convicts in the state prison, were indicted at the last November term in this county [Note 1], for the murder of Billy Williams, a negro, and a fellow-convict with them in that prison. Trial was had on the indictment at the same term; when Green was convicted of the crime of murder, and Trask was found not guilty, by reason of insanity. On the trial several witnesses were produced and sworn on the part of the government; among

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whom was one Sylvester Stoddard, who had been convicted of larceny, and was under sentence for the same in the state prison at the time the murder of Williams was committed; but had been pardoned, previously to the trial, by the executive of the commonwealth, and was admitted by the Court as a competent witness.

After the verdict, and before sentence was pronounced, information was received by the counsel for Green, that Stoddard had been formerly convicted of a felony in the state of New York, and had been punished by confinement to hard labor in the penitentiary in that state. Upon the suggestion of this information to the Court, judgment was respited, to give opportunity for the verification of the facts suggested. Afterwards a record of the conviction in a court in New York was obtained, by which it appeared that Stoddard had been convicted of the crime of larceny. Whereupon the following motion was submitted to the Court.

"Now after verdict and before judgment, the said Samuel Green moves the Court for a new trial, for the following cause, viz. Because one Sylvester Stoddard was produced, sworn and examined in behalf of the commonwealth, and was a material witness in support of the prosecution; and it has been discovered since the trial, that said Stoddard was convicted, in the year 1816, of larceny, committed in the city of New York, and sentenced, according to the laws of the state of New York, to imprisonment for a term of time, in the state prison or penitentiary of that state; whereby he was rendered infamous, and incompetent to be sworn as a witness."

The cause was argued upon this motion, at the last term, by Bassett and Curtis, for the prisoner; and by the Attorney and Solicitor-General, for the commonwealth.

Curtis. I admit that in England, this motion could not be sustained. The practice is there well settled, that in case of any irregularity in the trial of a capital indictment, not apparent upon the record, which renders the

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conviction improper, the prisoner is recommended by the judge to the mercy of the crown; and this recommendation is usually followed by a pardon. But this course, however expedient under a government of prerogative, is not suited to the spirit of our free institutions; it leaves too much to the discretion of the Court and the executive. The rights of the citizens of the United States stand upon a firmer and more substantial basis. They do not depend upon the caprice of any magistrate, however elevated.

We are not aware that the law has yet been settled in this commonwealth, by any decisions; nor is there any long-established usage, which binds the Court to refuse a new trial in capital cases, upon motion of the prisoner. The maxim, Nemo bis debet vexari, pro una et eadem causa, was established in arbitrary times, for the benefit of the prisoner, to protect him against a second prosecution, when the verdict of the jury had established his innocence. The humane founders of this principle of law intended it as a shield to the unfortunate object of royal jealousy; not as an instrument of oppression. It is obvious, then, that the spirit of the rule will not only justify, but obliges the Court to grant a second trial upon motion of the prisoner, when he has been improperly convicted. This is a right in favorem vitae, and is so well founded in reason, that it seems unnecessary to cite authorities in support of it; but we beg leave to refer the Court to two decisions on the subject; which are the only instances, we have been able to find, of new trials being granted in capital cases.

In 1799 John Fries was indicted for high treason against the United States. After a trial which occupied fifteen days, he was convicted; but before sentence, a new trial was moved for by his counsel, because one of the jury had used expressions indicative of prejudice against the prisoner, which, it is to be observed, was discovered after the conviction. The learned counsel for the prosecution seems to have taken it for granted, that a new trial might be had for sufficient cause; but he resisted the motion on the

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ground that the prejudice complained of might have been discovered before verdict, and would have constituted a good cause of exception to the juror. The Court, however, without hesitation, granted a new trial. [Note 2] The Supreme Court of South Carolina, in case of a conviction of a capital offence, ordered a new trial for the same cause, which was assigned in Fries's case. [Note 3]

An equally stubborn rule of criminal law is that which prohibits the discharge of a jury empanelled to try an indictment, without rendering a verdict. Yet in Kinloch's case, [Note 4] the jury was discharged from a capital indictment, and a new jury was afterwards empanelled; and in a late case, in New York, the same thing was done in a trial for manslaughter. [Note 5] In indictments for offences not capital, new trials are readily granted, both in England and in this commonwealth. [Note 6]

With these views we take it for granted, that a new trial of a capital indictment would be granted by the Court, for proper cause; and we now come to the second question in this case, viz., whether the discovery of the witness's infamy, after verdict, is a sufficient cause to entitle the prisoner to this privilege; and this inquiry is prior, in its nature, to the question on the effect of a conviction in another state. For if the objection to the witness comes too late, the motion must of course be overruled. The strict rule of law, it must be admitted, requires the party, who seeks to exclude a witness by reason of infamy, to be provided, at the trial, with a copy of the record of his conviction, and judgment thereon; and that no evidence short of this can be admitted to prove the infamy.

But in civil actions, new trials are often granted, where either party has been surprised by evidence which he did not expect, and which he could have controlled, if he had been aware of its production against him; and in a late case this Court ordered a new trial, because the defendant's bail was received as a witness in his favor, although the objection was not made at the trial, and the record showed the fact.

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Had the prisoner, in the case at bar, been provided with a copy of the record of the conviction in New York, the witness must have been excluded, unless the pardon granted by the executive of this commonwealth restored him to competency; which is a point we shall consider presently. But he was ignorant, until the moment that Stoddard was sworn, that he would be offered as a witness against him; and it was thus impossible for him to be furnished with the necessary document to prove his infamy. It was a perfect surprise upon the prisoner, that the government should produce felons and convicts in support of the prosecution; and the subsequent events show that, if he had been aware of the course to be pursued, he could have excluded the testimony of one of them, and probably that of the other also. It is here to be remarked and remembered, that these white-washed felons (whose mouths would have remained forever closed, had not the executive pardoned them for the purpose of making them competent witnesses) furnished the only positive and direct testimony against the prisoner.

In civil actions, new trials are granted on affidavit of surprise by the production of unexpected testimony, or the discovery of important evidence. The present motion falls within both these limits, and is as much more entitled to favorable consideration, as the life of a fellow-being is more important than any question concerning property. Suppose that, after a conviction of a capital offence, upon the undisputed testimony of two or more witnesses, the prisoner discovers that they are all men of bad character, who have been convicted of felonies; and consequently that he has been convicted on incompetent evidence, having had no means of discovering their characters, or even their names, before the trial; is it possible that the Court would refuse a new trial, under these circumstances, and remit the convict to a doubtful application to the executive for a pardon? It is believed that the Court would never deprive themselves of the power of causing justice

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to be done to any individual, convicted in this manner. If the Court would feel bound to order a new trial, where all the witnesses were discovered to be incompetent, they will feel equally bound to do so, where only one is impeached. For it is impossible for them to say how much influence that man's testimony had upon the verdict. But it is certainly unnecessary to labor this point more.

The next question is, whether the conviction of Stoddard before a court of competent jurisdiction in New York, renders him incompetent to testify in our courts.-- It is not denied, that a conviction of felony disqualifies the party from testifying in any court in New York. This is not by virtue of the provisions of any statute, but is a part of the common law, as well of this state as of New York; and results from the infamy of character and loss of moral principle, which are manifested by the commission of the crime. If this rule is founded in reason, and a just perception of human character, it is plain that an individual, whose crimes render him unworthy of belief in one place, cannot be entitled to credit in another.

A term of years, spent in repentance and reformation, might restore him to virtue and its privileges; but the supposition, in the present case, is negatived by the facts before the Court, which show that the witness had hardly quitted the state prison in New York, before he was sentenced to that of Massachusetts.

If the ground assumed by the government is tenable, it must be by force of some technical rule, respecting the operation and effect of foreign judgments. We are ready to admit that although the moral turpitude of a person convicted of felony in England or France, would be the same as if convicted here, or in New York, yet, from the impossibility of producing the record of his conviction or any document of equal validity, his infamy could not be proved according to the rules of law. The witness would therefore be entitled to be sworn. But the judgments of the states composing the Federal Union are not foreign

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judgments. The constitution of the United States provides, "that full faith and credit shall be given, in each state, to the public acts, records and judicial proceedings of every other state; and congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." Art. 4, § 1. This duty congress has performed; and in compliance with these provisions, it has been decided by the highest authority, that the judgments of the courts of the several states, when duly authenticated, have the same force and effect in every other state, as domestic judgments. [Note 7] In the present case, therefore, there is no technical difficulty arising from the nonproduction of the record; since the laws of the United States declare a copy authenticated in a certain manner, to be of equal validity with the original. Unless there is a distinction between the civil and criminal proceedings of the state courts,--and I am not aware that any is made in the constitution or laws of the United States, or by their courts,--it should seem that the legal effect of a judgment of a court in the state of New York is no longer open to inquiry. The courts of this state are bound to give it the same effect here, which it would have there. The effect which the judgment against Stoddard would have in New York, has been already stated.

A brief consideration of the powers of the executive will furnish an answer to the inquiry, whether the governor and council of this state can restore an individual to competency, who has been considered incompetent, by conviction of felony in another state.

The executive of this state is vested with all the authority formerly possessed and exercised by the king of England; subject, however, to one important limitation in the constitution, ch. 2, sect. 1, art. 8, which provides, that no charter of pardon, granted before conviction, shall be of any avail whatever. In Great Britain, the king is the supreme head of the government; all process runs in

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his name, and all offences are supposed to be committed against him, and in derogation of his sovereign authority. The power of remitting the punishment of offences naturally belongs to the individual offended, and thence arose the prerogative of granting pardons. But it is a solecism in terms, to declare that any man or body of men can forgive a crime against the authority or rights of another; and therefore even the king of Great Britain has never claimed the right of pardoning, unless the offender was convicted in his own courts. The total silence of the books upon this subject justifies us in assuming, that he has never pretended to exercise this power; although it cannot be doubted, that instances have occurred, where the employment of it would have been desirable and expedient. If the king of Great Britain does not possess this power, the governor and council cannot claim it; for it will not be asserted, that the latter have more ample powers than the former.

We think it plain, therefore, that Stoddard's disability could not be removed by pardon from the executive of this commonwealth. Nor, if it could be, have the governor and council exercised their supposed authority, in such a manner as to effect this object. "To render a pardon valid, it must express with sufficient accuracy the crime it is intended to forgive. It seems to be the better opinion, that the crown cannot pardon any crime with effect, without specifically naming it; for the courts will not intend his majesty to be informed of the particular offence, of which the defendant has been convicted." [Note 8] The authorities cited by Mr. Chitty fully support this position. The charter of pardon, granted to Stoddard, specifies only two convictions; both of which were before this Court sitting in Berkshire; and although it concludes with general words, comprehending all felonies, the books show that these general words are of no avail.

It is then hoped that we have shown, that this Court has power to grant a new trial, for proper cause, in a

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capital case; that the incompetency of a witness, from infamy of character, is a proper and sufficient cause; although discovered after conviction; that the conviction of felony, before a competent tribunal in another state, affects the competency of the party, in the same manner as if the judgment were rendered by a court of this commonwealth; that such disability cannot be removed by pardon from the executive of this commonwealth; and that, if it could be, the governor and council have not exercised their power, in this instance, in such a manner as to restore the witness to competency and credit. From all which it would seem to follow, that the prisoner is entitled to a new trial.

The Solicitor-General stated, that there had been no instance, either in England or in this commonwealth, where a new trial had been granted in a capital case. It is said in 1 Chitty, C. L. 654, to be "completely settled," that no new trial can be granted in treason or felony; and that the course, at common law, had been uniform, if, in the opinion of the Court, the conviction was improper, to respite execution, and recommend the prisoner to mercy. And in the case of The King vs. Mawbrey & Al. , [Note 9] Lord Kenyon says, no new trial can be granted, in cases greater than misdemeanors. The same doctrine is laid down in 13 East, 416, note b. It seems therefore unquestionably settled in England, that no new trial, in a capital case, ever was, or can be granted.

In the case of John Fries, in the Circuit Court of the United States, a new trial was indeed granted. But it is apprehended, that this Court will consider itself no further bound or influenced by that decision, than the reason and circumstances of the particular case will warrant. It will be remarked, that only two judges were on the bench, when that question was decided; and that they differed in opinion, upon the right or expediency of granting a new trial.

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The cases in this commonwealth, which have a bearing upon the question, are those of The Commonwealth vs. Hardy, [Note 10] and The Commonwealth vs. Drew. [Note 11] In the former of these cases, nothing was settled, which is applicable to the present question. There was no new trial moved for; for the prisoner had never been tried, although there was a verdict against him. He had never been legally arraigned, and of course there could have been no trial; the arraignment and plea being an indispensable part of the trial. If he had been arraigned and put to plead before the sheriff, or one of the bar, the arraignment would have been as valid in law, as it was in that case; the law requiring a full bench to be present, at every part of the trial of a capital offence.

In Drew's case, the decision, under circumstances very similar to those of the present case, was against a new trial. And by the current of decisions, even in cases not capital, no new trial has been allowed on account of the discovery of evidence after the trial, of a nature similar to that now complained of. [Note 12]

The Court therefore, in the present case, must resort to original principles, and apply them to the laws and constitutions of this country, in order to decide upon the legality of the present motion; and if, upon such inquiry, the Court should find it proper to depart from the ancient principles and usages of the common law in England; or from the spirit of what appears to have been the rule of decision, in the case of The Commonwealth vs. Drew; their decision will be cheerfully acquiesced in by the officers of the government.

The solicitor-general thought it his duty to state, that he could not perceive either the justice or the policy of the course of procedure in the English courts, in refusing a new trial in capital cases, under circumstances which would undoubtedly induce them to grant one in misdemeanors, and even in civil actions. The granting of a new trial, upon motion of the prisoner, is not only not

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repugnant to the ancient maxim, that his life shall not be put in jeopardy twice for the same crime, but it is really granting him a privilege, which may operate to save his life, by standing a second trial for it.

If, in the case at bar, the Court find themselves authorized to grant a new trial, then the common rules, applicable to all similar cases, are relied upon, viz., that it will not be granted as a matter of course; and that it is wholly in the discretion of the Court, to grant or refuse it; and from what appeared on the trial in this case, there is no ground for the present motion. The evidence against the prisoner was clear and satisfactory, without the testimony of Stoddard, the pardoned witness. The fact of his conviction was probably known to the prisoner, at the time of the trial; and no objection was then made to his competency. No legal evidence of his conviction was at hand, or had been then obtained; and if the objection had been made to his competency, on the ground of his conviction, it could not have prevailed.

With respect to the effect, which the conviction of Stoddard, in the state of New York, had upon his competency as a witness in the courts of this state, the solicitor-general considered the question as one of great importance and delicacy; but as the attorney-general had investigated that point in the cause particularly, the authorities bearing upon it were left for him to produce.

The Attorney-General observed that, since this motion had been made, he had looked into the subject, rather with a view to find a sanction for the exercise of the authority of the Court to grant a new trial in a capital case, after conviction, than the contrary doctrine; because it may be true, that although an incompetent witness may have been admitted, who ought to have been rejected, yet the Court may have been convinced that, independent of his testimony, the other evidence in the case would have been sufficient to convict the party. In such case, public justice would require that he should not be recommended

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for pardon, which is the practice in England; and on the other hand, as the testimony of the incompetent witness may have had some weight in the minds of the jury, in producing his conviction, it would seem right and proper, in favorem vitae, that he should have a new trial. Indeed Judge Blackstone, in treating of criminal prosecutions generally, observes that, in many instances, where, contrary to evidence, the jury have found the prisoner guilty, the verdict hath been mercifully set aside, and a new trial granted by the Court of King's Bench; but never after an acquittal. [Note 13] But an examination of the authorities, cited by the learned commentator to this point, [Note 14] will show that they are all cases of misdemeanors only. As to capital offences, the law in England seems to be perfectly established, that no new trial can ever be granted, whether after conviction or acquittal.

The same opinion seems also to have been entertained by this Court, in the case of The Commonwealth vs. Drew, referred to by the solicitor-general, by their refusing to hear the evidence of the facts, suggested as the ground for a new trial; and which, if true, would have been sufficient for the purpose in any case not capital. It seems, however, that the Circuit Court of the United States in the case of John Fries, and the Supreme Court of South Carolina in another case, have adopted a different course; and whether the reason, on which the American cases are grounded, is sufficient to induce this Court to adopt a similar course, or not, is respectfully submitted to them. It is, however, important to future practice, that the law on this point should be decisively settled.

But if the point were yielded, as to the general authority of the Court, it is confidently relied, that in the case at bar, no new trial will be granted. Stoddard was a competent witness in this Court; he had received a general pardon of all felonies and misdemeanors, from the supreme executive of the commonwealth The effect of such

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pardon, according to Judge Blackstone, Lord Hale, and other standard writers, is not so much to restore his former, as to give him a new credit and capacity; and in fact to make him a competent witness. So far, then, as the authority of our executive extends, which is throughout the commonwealth, so far is the party pardoned a competent witness; and all the courts of law within the commonwealth are bound to respect such pardon, and to give to it all its legal effects; one of which is to admit him in all such courts as a competent witness, leaving his credibility to the jury. It would be absurd to say, that the sentence of a judicial court, under a foreign jurisdiction, should have the power to control the constitutional rights and authority of the supreme executive of this commonwealth, within its own jurisdiction.

If a person in England had been pardoned by the king, by the effect of which he was made a competent witness, can it be supposed that the producing of the record of a conviction of the same person in Holland or France, would be admitted in the English courts to be a sufficient cause for rejecting him as incompetent, and so to control the effects of the king's pardon within the realm? No such case is to be found in the English books; although it is probable that frequent instances of such foreign convictions must have occurred, and the parties afterwards used as witnesses; it is plainly to be inferred, that such effect of a foreign conviction has never been suggested. It may be, and it probably is the case, that the record of such convictions has been used to impeach the credit of a person offered as a witness; but never to render him incompetent. This ought, as we contend, to be its utmost effect here.

The article, in the constitution of the United States, which has been relied on, and which provides that full faith and credit shall be given, in each state, to the public acts and judicial proceedings of every other state, can have no bearing on this question. Full faith and credit is given to the judicial proceedings of the state, where the

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conviction was had, as much by suffering an authenticated copy of such conviction to be read to the jury, for the purpose of affecting the credit of the witness, as by the court's rejecting him as incompetent.

We do not deny that instances have occurred at nisi prius, in which the record of such a conviction has been held by the judge to render a person incompetent to testify. But this has originated from a spirit of comity, more than as grounded on principle. Such cases have all passed sub silentio, without argument or discussion, or even objection. But if it were legally correct to reject such witnesses as incompetent, yet it is contended that the effect of a pardon intervening ought to render the person competent in the courts of this state; or, in other words, the effects of a pardon should be coextensive with the effects of the conviction.

The question is of importance, not only to the humane distribution of public justice, but also to the sovereignty of the state. If it be sovereign within the limits of its jurisdiction, it must be able to protect its own laws and constitutions, and to give them all their legal effects within those limits. If the effect of the pardon of Stoddard be to make him a competent witness in all the courts of the commonwealth, then, his being used as a witness in the trial of this cause was correct and legal, his conviction in New York notwithstanding, and furnishes no reason for granting a new trial.

Bassett, in reply, admitted that it was laid down by the English authorities, that in capital cases a new trial cannot be granted. But he believed that no case could be found where this question had been deliberately settled, upon full argument. Indeed, such a rule was not founded upon sound principles of justice; and this would account for the silence of the books in not stating any reasons in support of it. The maxim of the common law, that no one shall be twice put in jeopardy for the same offence, does not apply to the present case. The true meaning of

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the maxim is, that no person who has been once fairly and fully tried for a crime, and acquitted, shall be again exposed to punishment for the same offence; but the verdict in his favor shall be his security. To deny the accused, who has been improperly convicted, the right to be tried a second time upon his own application, would be manifestly repugnant to that humane principle of the law.

The rule, contended for by the counsel of the government, was adopted in England from principles of policy, which apply to the particular form of government in that kingdom; but which have no application to our own. In arbitrary times, the power of granting a new trial, or, which involves the same principle, the power of withdrawing a juror in capital cases, was made the instrument of oppression and cruelty. The public prosecutor was permitted to arraign the accused, and put him to the bar for trial; and after the evidence on the part of the crown was found to be insufficient to procure a conviction, the jury were dismissed, and the accused again exposed to trial when further evidence had been obtained. From this abuse of power by the court, it became necessary to establish the rule that a second trial could not be granted in capital cases. But, to prevent the injustice which would result from a strict adherence to the rule, a discretionary power of some sort must be vested in the court. Hence, in England, whenever any equitable considerations in behalf of the accused appear, so that, after conviction, he is thought to be a proper subject of mercy, upon the recommendation of the court, application is made to the crown for a pardon.

This practice has never been adopted by the courts in this country, and such a practice would be contrary to the genius of our government. The accused has the right of being fully heard, and fairly tried, by his peers; and this right is secured to him by the constitution of this state. In the twelfth article of our declaration of rights, it is

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said, "No subject shall be held to answer for any crime or offence until the same is fully and plainly, substantially and formally, described to him; or be compelled to answer or furnish evidence against himself. And every subject shall have a right to produce all proofs that may be favorable to him; to meet the witnesses against him face to face; and to be fully heard in his defence, by himself or his counsel, at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land."

Admitting the Court have the power, does the present case require them to exercise it? This must depend upon the general question, whether a person who has been convicted of felony in one state by a court of competent jurisdiction, can be a competent witness in another state. Upon this point, no authorities which have a direct bearing can be found, with the exception of Glassford, a recent Scotch writer, who seems to imply by his remarks that a person convicted of an infamous crime in England, could not be permitted to testify in a court of justice in Scotland. The reasoning, therefore, upon this question must be founded on a consideration of the general rules of evidence, and of our peculiar forms of government.

It is a rule of evidence that the conviction of any crime which amounts to the crimen falsi, is a good cause of exception against a witness; and that it is the infamy of the crime which destroys his competency, and not the nature or mode of the punishment. In other words, the disqualification follows as a consequence, but makes no part of the sentence. The conviction, in a court of competent jurisdiction, gives a legal existence to the crime; but, in a moral point of view, cannot change the nature of the offence. The same infamy will attach to a crime whether it be committed in one state, or in another; and it is not easy to perceive why the same consequence should not follow.

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It may be said that the record of a conviction is the only evidence to prove the incompetency of a witness; and that the record of a foreign court is not conclusive. This argument applies to the English practice, where the production of the original record is required to disqualify a witness; and since a foreign judgment can be proved only by a copy of the record, which is, in its nature, parole evidence, it goes to the credibility of the witness, and not to his competency. But judgments, rendered in any one of the United States, are not considered in the other states as foreign judgments, in this sense. The federal constitution provides that full faith and credit shall be given, in each state, to the public acts, records and judicial proceedings of every other state; and it has been decided in the Supreme Court of the United States, although the Court were divided in opinion, that a judgment rendered in one state shall have full force and effect in every other state. Whether a judgment rendered in one state have full force and effect in every other, it is not necessary to decide in the present case; for, if full faith and credit be given to the record, the fact of conviction is established, and the incompetency of the witness follows as a consequence, but makes no part of the sentence.

It is also declared in the constitution, that each state has jurisdiction over all offences committed against and within that particular state. Since, then, the record of conviction in one state is evidence in every other state of the subject matter of the conviction, the jurisdiction of the court, and the nature of the offence, will be apparent from the record itself. For the offence, committed in that particular state, being the subject matter of the conviction, no other state could have jurisdiction of it; and the nature of the offence will determine the legal incapacity of the witness.

A further argument is derived from the relation which the state governments, and that of the nation, bear to each other. They may be considered in the light of kindred

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systems, and as parts of one whole. In some cases, the state courts have concurrent jurisdiction with the national; and, in all cases where the rights of citizens of different states are to be tried, the ultimate decision may be had in the national court. If the principle contended for on the part of the prosecution be established, it will follow that a witness who is rendered incompetent in a state court, may be permitted to testify when the rights of the same parties are tried in the federal court; and a person convicted of an infamous crime in the highest court of the nation, and rendered incompetent to testify in that court, may, nevertheless, be admitted as a competent witness in the state courts. Principles of policy, therefore, come in aid of the general rule, and seem to require that a person who has been convicted of a crime in one state, which renders him an incompetent witness there, should not be permitted to testify in a court of justice in another state.

It has been contended by the counsel for the government, that the future discovery of evidence of this nature is not a sufficient cause for a new trial; and the case of The Commonwealth vs. Waite has been cited in support of the position. Upon examining that case, it will be found that the facts subsequently discovered were of a nature to affect the credibility, and not the competency of the witness. It can, therefore, have no application to the present case, if the view which has been taken of it be correct.

The argument is, that Stoddard, by his conviction in New York, was rendered an incompetent witness; and, as the fact of conviction was not known at the trial, nor could be drawn from him on the stand, the not producing the record ought not to prejudice the prisoner, whose life was put in jeopardy. Nor could the pardon of the executive of this state restore his competency as a witness By the constitution of this state, the power of pardoning all offences is given to the governor and council; which evidently means all offences committed against, and within

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this commonwealth. The state of New York has jurisdiction of all offences committed against and within that state; and the power of pardoning all such offences belongs to the sovereignty of that state, and cannot be exercised by the authority of another state. It is not pretended, on the part of government, that a pardon has been obtained from the proper authority of New York. The incompetency of Stoddard, then, still exists; and, it is confidently believed, is a just cause for a new trial.

The indictment was continued to the present term, for the consideration of the motion; and now the opinion of the Court was delivered by

PARKER, C.J. The prisoner, having been convicted, by the verdict of a jury, of the crime of murder, at the last term of the Court, moved for a new trial; because, as alleged in his motion, one Sylvester Stoddard, who had been sworn as a witness on the part of government, and who had testified to the jury, had been convicted of the crime of larceny, in a court having jurisdiction of the offence, within the state of New York; whereby, as is alleged, he was rendered infamous, and for that reason his testimony could not be received in a court of justice in this commonwealth. A copy of the record of that conviction has been produced in support of the motion; and sufficient evidence has been given, to satisfy the Court, for the purpose of sustaining this motion, that the Sylvester Stoddard who was sworn and examined on the trial of the prisoner, was the subject of that conviction. It appeared also, that judgment was rendered upon that conviction, and was executed upon the convict, within the public prison of the state of New York.

It has been argued by the attorney and solicitor-general, that by law a new trial cannot be granted of a capital felony; and it appears by the English text-books, and by several decisions cited in support of the position, that in cases of felony, a new trial is not usually allowed by the courts of that country. But whatever reasons may exist in that country for this practice, we are unable to discern any sufficient ground for adopting it here.

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That a prisoner, who has been tried for a felony, and acquitted, should not be subjected to a second trial for the same offence, seems consistent with the humane principles of the common law, in relation to those, whose lives have been once put in jeopardy. But the same humane principles would appear to require, that after a conviction, a prisoner should be indulged with another opportunity to save his life, if any thing had occurred upon the trial, which rendered doubtful the justice or legality of his conviction. Nemo bis debet vexari, pro una et eadem causa, is a maxim of justice, as well as of humanity; and was established for the protection of the subject, against the oppressions of government. But it does not seem a legitimate consequence of this maxim, that one who has been illegally convicted, should be prevented from having a second inquiry into his offence; that he may be acquitted, if the law and the evidence will justify an acquittal.

It is true, that, in England, the utmost caution is used on capital trials in favor of life; and if an irregularity materially affecting the trial, occurs to the injury of the accused, the court usually represents such matter to the crown; and a pardon is generally granted. But it is the right of every subject of that country, and of every citizen of this, to have a fair and legal trial before his peers, the jury; and it is hardly consistent with that right, that it should be left to the will or discretion of the judge, whether a representation of an actual irregularity shall be made to the pardoning power; or to the discretion of the latter, whether that power shall be exercised in favor of a person unlawfully convicted.

Where the error appears of record, in either country, the court will arrest the judgment after a verdict of guilty; and the party may be again indicted, and tried, for the same offence. If the error does not appear of record, but arises from inadvertency of the judge, in rejecting or admitting evidence, or from misbehavior of the jury, or other cause which would be good ground for a new trial in

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civil actions or misdemeanors; justice and consistency of principle would seem to demand, that the person convicted should, upon his own motion, have another trial; instead of being obliged to rely upon the disposition of the court to recommend a pardon, or of the executive power to grant it. It is not enough, that the life of the accused will generally be safe in the hands of such highly-responsible public agents. The right of the subject to be tried by his peers, according to the forms, as well as principles, of law, is the only certain security, that at all times and under all circumstances, that protection which the constitution extends to all, will be effectually enjoyed.

Nor is it for the public safety and interest, that new trials should be refused in such cases. For it must be obvious, that in most cases of irregularity, which would be a good cause for another trial, if in the power of the court to grant it, a pardon, upon the representation of the court, would be thought to follow of course; and thus, in many cases, public justice might be prevented on account of defect in form, or some irregularity, not affecting the merits of the case; which mischief might be avoided by another trial.

For these reasons we think there is a power in this Court, to grant a new trial on the motion of one convicted of capital offence, sufficient cause being shown therefor; notwithstanding the English courts are supposed not to exercise such authority; and if this opinion needs support, the case of John Fries, who, after conviction of treason, was tried a second time, and the case in South Carolina, cited at the bar from Bay's reports, are sufficient for this purpose. In the case of The United States vs. Fries, Mr. Rawle, the district attorney, admitted the power of the court to grant a new trial; and argued only against the propriety of exercising the power in that case. Judge Iredell expressly admitted the power; and Judge Peters, who was against a new trial, although he yielded to the circuit judge, did not deny the authority of the court to

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grant it. In a late case, also, in New York, The People vs. Goodwin, which was a case of felony, it was decided that the cause might be taken from the jury, and a new trial ordered.

Assuming, then, that this Court has the power to grant a new trial in cases like the one before us, we are to inquire whether the facts upon which the present motion is founded, are of a nature to require the exercise of that power; and, if not, whether, in the discretion of the Court, it ought now to be exercised.

If illegal testimony was admitted against the prisoner on his trial, after objection by his counsel, it would be a cause without any doubt. For, although the opinion of a majority of the Court, sitting in a capital trial, is final and conclusive, yet it is their duty to revise such opinions, as they may have opportunity; and if any of them, materially affecting the cause, should appear to have been erroneous, for want of time and means of information in the course of the trial, it would also be their duty either to certify the fact to the executive, or to grant a new trial, if the prisoner should request it, in order that the error might be corrected. The latter course would be the most proper; for, as the Court can exercise no control over the executive, whatever confidence they might feel in that department, they would be unwilling to commit to other hands, in a case affecting life, an error committed by themselves, or by others concerned in the trial, the regularity of which they are bound to enforce.

The supposed error in this trial is, that one of the witnesses, on behalf of government, stood convicted of an infamous crime, of which he had not been pardoned, and that thereby he was rendered incompetent as a witness. Waiving, for the present, the effect of this conviction, as having taken place under another jurisdiction, we will inquire whether, supposing the conviction to have taken place in any of the courts of this commonwealth, having jurisdiction of the offence, or, even in this Court, it would

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be a sufficient ground to entitle the prisoner, as matter of right, to a new trial.

The objection was not made at the trial. It could not have been made at that time; for the fact was probably not then known to the prisoner, certainly not to his counsel. It is very clear that the conviction of an infamous crime, and judgment pursuant to it, destroys the competency of the party as a witness. But it is equally clear that whenever that objection is made to a witness, it must be supported by the record of the conviction and judgment. These must be produced and offered when the witness is about to be sworn, or, at farthest, in the course of the trial. If that opportunity is omitted, it is no legal cause for setting aside a verdict that such witness has testified in the cause.

All the books which treat of this subject are positive and express in the declaration, that the party objecting must be prepared with the record; and as some of them express it, come with it in his hand; or he shall not be heard against the competency of the witness. This rule is strict, and it ought to be so; for if any thing short of a record should be admitted to impeach the competency of a witness, it would be easy for parties accused to protect themselves from punishment; and it would be, in most cases, impossible for the witness attacked, without previous notice, to defend his reputation. Not only must infamy be proved by record, but the objection shall not be heard without a record. For, otherwise, the witness might be disqualified without cause; and no man ought to be allowed to charge another with an infamous crime, and thereby deprive him of his standing in court as a witness, without being ready to support the charge by evidence which cannot be impugned. If the suspected witness may himself be inquired of, whether he has been convicted, or, if other evidence than the record may be given, it is only to affect his credibility; and he may contradict the evidence by testimony in favor of his character.

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It being the rule, then, that objections to the competency of a witness, founded on conviction of crime, must be made at the trial, and when the witness is offered to be sworn, it follows that, because a witness was sworn in the cause, who is since found to have been so convicted, the trial was not for that cause erroneous or irregular; and a new trial on that account cannot be demanded as a right. Whether this fact furnishes a sufficient ground for the discretion of the Court to grant a new trial, depends upon other circumstances, which will hereafter be stated. The trial cannot be impeached because a witness, against whom there was no legal objection at the time, is afterwards discovered to have been liable to an exception, which, if known, would have excluded his testimony.

It is a rule in civil as well as criminal actions, that objections to witnesses, on the ground of interest or infamy, must be made at the trial; and it is necessary that it should be so established; for otherwise there would be no termination to suits. Parties, knowing the facts which constitute objections, would conceal them until the trial was over, for the very purpose of having two chances of success; and it would seldom be known that they had concealed their knowledge. It must, therefore, instead of being a matter of right to have a new trial for such cause, be discretionary with the Court to grant or refuse it, according to the circumstances of the case, and the purposes of substantial justice.

It being, then, a question to be decided by the discretion of the Court, whether a new trial shall be granted, it is necessary to take into view all the circumstances of the case, with as favorable a disposition to the prisoner as may be consistent with our duty to the public, and a due regard to sound principles of justice.

We are, then, first to consider whether, if a new trial should be granted, it is certain the prisoner could avail himself of the conviction of Stoddard, so as to destroy his competency as a witness. We are by no means satisfied,

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that such would be the necessary legal effect, in the courts of this commonwealth, of such a conviction in another state.

If New York is to be considered on the footing of a foreign state, the difficulty of giving such effect to a conviction seems insuperable. The objection to the witness on account of infamy, must be supported by a record of the judgment. What is a record of a foreign state, and how it shall be authenticated, are questions of delicacy and difficulty, which it would be almost impossible to settle in the course of a trial, which must always proceed with as little interruption and delay as possible. Whether the facts, which would be here deemed an infamous crime, are the same which constitute the like offence in the country from which the record comes, the Court would have no means of knowing with certainty. The crime of treason is known to be different in different countries; what is felony, also, in one country, may not be felony in another; and it is competent to the legislature of every nation, to attach disabilities to the commission of offences; which, by the laws of other nations, may be wholly without such consequences.

Thus one state may enact that the detention of another's property after demand by the owner, shall be deemed and taken to be larceny, and punished as such; and that a general description of the offence, in the indictment, should be sufficient; so that a foreign court could never know, by inspection of a copy of a record, what were the ingredients of the crime which had been punished.

So, also, the non-payment of a debt may be branded with infamy by the laws of any country, and designated by some term usually denoting the crimen falsi; and this class of crimes may be enlarged so as to comprehend transactions which in other countries are considered venial, or, at least, not criminal.

If the common law were unchangeable, the courts of countries which adopt it as part of their code, might know with certainty the nature and character of crimes; but

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while every country has its legislature, which has a right to alter or repeal the common law, such certainty cannot be attained. Treason, by the common law, renders the convict infamous; but many acts are made treason by positive enactments in one country, which would not be so in another. The infamy, therefore, consequent upon treason, ought not to pass beyond the country in which the crime is committed.

Another objection to receiving such evidence for such a purpose, is, that a person, who may have left his native country convicted of crime, however long he may have lived in his adopted country, and whatever reputation he may have acquired by a course of upright and honorable conduct, has no means of being restored to credit. For the pardoning power of the country where he resides, cannot reach an offence committed without its jurisdiction. And thus it may happen that a naturalized citizen, who, by his virtue and talents, and a long course of irreproachable conduct, may have obtained the confidence of his fellow-citizens, and even their suffrages for the most important offices, may be met in a court of justice by some obsolete record of a conviction of some crime, perhaps merely political, which may be deemed infamous in the country from which he came; and can have no power of effacing the stain, without soliciting a pardon where he may be wholly forgotten, and where there can be no evidence of such a change of life and manners as would entitle him to the clemency of the offended power.

It is these difficulties, with others which might be mentioned, which justify the principle that appears to be adopted by the English courts; and which we are disposed to think is a maxim of general law, recognized by all nations, viz. That the penal laws of a country do not reach, in their effects, beyond the jurisdiction where they are established. It is so laid down by an eminent judge in the case of Folliott vs. Ogden, 1 H. Black. 131, and in a treatise of public law by Martens, the same principle is

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advanced in more extensive and unlimited terms. In the 24th section of his work he says, "The criminal power being confined to the territory, no act of its authority can be exercised in foreign countries without violating their rights." In the 25th section he says, "By the same principles a sentence, which attacks the honor, rights, or property of a criminal, cannot extend beyond the limits of the territory of the sovereign who pronounced it. So that he who has been declared infamous in one country, is infamous in a foreign country in fact, but not in law;" which terms the author probably uses in allusion to the civil law, resembling, in some degree, our distinction between competency and credibility. By infamia juris is meant infamy established by law as the consequence of crime; infamia facti is where the party is supposed to be guilty of such crime, but it has not been judicially proved. "And the confiscation of his property cannot affect his property situated in a foreign country. To deprive him of his honor and property judicially there also, would be to punish him a second time for the offence." To refuse a man the right to be a witness on account of a conviction in another country, would be to suffer that conviction to have force here, and, in some measure, to carry it into execution.

If it be said that it will be dangerous to the lives and reputations of the citizens, that foreigners, who have been rendered infamous abroad, should be admitted to testify against them, the answer is, that their former condition and character may be made known to the jury to enable them to judge of their credibility; and this without depriving them of any valuable personal right by reason of their conviction abroad. Their right to stand in court as probi et legales homines is sustained; but as all other men, the value of the testimony is to be estimated by their general reputation, and, even, by the proof of particular facts showing a conviction and punishment for crime; and the effect of such proof may be always rebutted by evidence of good conduct, a virtuous life, &c.

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Infamy is, in truth, part of the punishment of the crimen falsi, although not expressed in the sentence; and it creates a disability to testify, just as excommunication in a spiritual court does to sue in the courts of common law. To hold a person incompetent on account of such a conviction, is to give effect to the conviction, and to enforce the punishment; and thus the penal laws of one country would reach into others, contrary to the principle above stated.

It would seem to be consistent with sound principles, also, that, wherever there is a crime or punishment remaining in force, there should be a power of pardon; but the act of pardon cannot operate upon an offence committed under another jurisdiction; nor can it extend beyond the jurisdiction of the offended sovereign. So that one who has once exposed himself to a punishment which renders him infamous in the country where the offence was committed, must be perpetually stigmatized if he remove into another country. This is sufficient to show the reasonableness of limiting the penal effects of crime to the country whose laws have been violated.

We do not find, after a careful examination, as well by the counsel for the prisoners, as by ourselves, that the question before us has arisen in the English courts, or in those of any of the United States. All the cases in the English books in which objections were made to the competency of witnesses on the ground of infamy, seem very clearly to have been cases of conviction in some of their own courts. Indeed the strictness of the rule under which such evidence is admitted, seems almost necessarily to exclude convictions in any foreign court. The objector must have the record in his hands, and must show not only a conviction, but a judgment thereon. We think the silence of the English books on this subject, even among the multitude of treatises on evidence, which have lately issued from the press, furnishes strong reasons to believe that objections of this nature, if heard at all, only go to the credibility of witnesses.

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The only book we have seen, which intimates a different doctrine, is one upon the principles of evidence, by a Mr. Glassford of Scotland, referred to in the argument for the prisoner; a respectable writer, but hitherto unknown to the courts of law in this country. Speaking of incompetency by reason of infamy, he inquires into the proof necessary to establish the fact; and supposes that an exemplification of a record, from England or Ireland, would be received as proof in Scotland. How far the peculiar organization of the Scotch courts, and the system of rules by which they are governed, may have had an effect on their law of evidence, we cannot know; nor whether the circumstance, that the three countries are under one sovereign, and one legislative power, may not have had its effects. The examples produced by the writer are from England and Ireland only; and from this it would seem that his doctrine would not apply to the records of a country strictly foreign. Indeed such records cannot properly be exemplified; but must be proved by testimony, as other facts are proved.

But it has been argued by the counsel for the prisoner, that, although a conviction in a court of a country strictly foreign, should not be held to take away the competency of a witness, yet that such is the relation of the several states which compose the American Union with each other, that the same law ought not to prevail here; as the states are not in fact foreign to each other.

If this position is true, it must result from the constitution of the United States only; for without that, the several states were entirely independent of each other, and as completely foreign one to the other, except so far as temporary confederacies may have united them, as any separate European governments. Whatever change exists in this relation, must be sought for in the constitution of the United States, and the laws of congress made pursuant thereto.

The provision of that constitution is, that "full faith and credit shall be given in each state to the public acts,

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records, and judicial proceedings of every other state; and the congress may, by general laws, prescribe the manner, in which such acts, records, and proceedings, shall be proved, and the effect thereof." By this provision, separate from any act of congress pursuant to the authority therein given to that body, nothing more is established than that public acts, records, and judicial proceedings, when duly authenticated in the manner which congress should afterwards prescribe, should be received, as conclusive evidence of the facts they were intended to establish in all the courts of the Union; leaving to those courts the power of giving such effect to records so authenticated, as the laws by which they were governed should require; and this effect might be different in different states, according as their own local rules, or the principles of the common law, should prevail with them. But it was desirable that uniformity upon so important a subject should exist; and, therefore, the power was given to congress, to declare, by general laws, the effect of such records.

The act of congress, which was passed soon after the organization of the government under the constitution, viz., in the year 1790, in execution of this power, unhappily is not expressed in such terms as to remove all doubt as to the effect of judgments in states, other than those in which they were rendered. This act, after providing the manner in which records shall be authenticated, declares that they shall have the same faith and credit given to them, in every court within the United States, as they have, by law or usage in the courts of the state from whence the said records shall be taken.

If there is any difference between the faith and credit given to a record of a judgment, and the effect of such judgment, it would not seem that congress, by this act, had done any thing more than was previously provided in the constitution, except as to the mode of authentication. For by the constitution itself full faith and credit must be

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given; and that could not be, unless it had the same faith and credit in another state, which it would have in the state from whence it was taken. That there is an essential difference between faith and credit, and effect, would seem to follow from the different application of the terms, as used in the constitution. That instrument itself establishes the faith and credit of records; but their effect is left unprovided for, except in the power given to congress to legislate upon the subject.

Courts in the different states, and judges in the same state, have varied in their construction of the constitution, and of the act of congress upon this subject; some holding that the effect, by which they mean the legal import and obligation of judgments of another state, is still left open to be decided by the common law; others that the terms "faith and credit," as used in the act of congress, mean the same thing as the term "effect," and that this effect being the same in the state where they are used, as in the state from whence they come, they are in all respects like domestic judgments, as to their conclusiveness against the party who is the subject of them.

In this commonwealth the construction of the constitution, and of the act of congress, must be considered as definitively settled in the case of Bissell vs. Briggs, 9 Mass. 462. The decision in that case is, that judgments rendered in other states are not merely foreign judgments, liable to inquiry into their merits, being only prima facie evidence of debt; nor entirely domestic, so as to preclude any inquiry into the jurisdiction of the courts, in which they are rendered; but that, if the Court had jurisdiction, they are to all intents and purposes as effectual and uncontrollable, as judgments rendered in our own courts. It would seem by the opinion of Chief Justice Parsons, delivered in that case, that the jurisdiction of the Court may be inquired into, as a matter of fact, on a plea of nil debet; and that, if the want of jurisdiction should be established by the defendant, he will prevail on that issue.

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The Supreme Court of the United States have carried the sanctity of judgments still further, having in the two cases of Mills vs. Durfee, 7 Cranch, 481, and Hampden vs. M'Connel, 3 Wheaton, 234, decided that nil debet is not a good plea to an action upon a judgment of another state; and, indeed, that no plea would be good, except such as would be allowed in the courts of the state, in which the judgment was rendered; thus establishing an identity, in operation and effect, between judgments rendered in the courts of the same state and in those of other states. Over a question of this nature, the construction of the constitution and laws of the United States, that Court has the final and conclusive authority; so that their decision must be taken to be the law of the land. There can be, therefore, while these decisions stand, no further doubt as to the effect of the judgments of the courts of one state in those of another.

Then comes the question of the application of this principle to the case now before us - Does the conviction of an infamous offence, proved by the copy of a record of a court of competent authority in the state of New York, render the subject of such conviction incompetent as a witness in the courts of this state? We do not think that this follows from any principles yet established; for there is a manifest distinction between the judgments of another state in civil actions affecting property only, and judgments on criminal prosecutions; and there is reason to believe, that the provision in the constitution had respect to the former only. It must be supposed that, when the people declared in the constitution, that full faith and credit should be given to the judgments of each state respectively, they must have intended such judgments, as could, by the aid of courts of states, other than those in which they were rendered, be carried into execution and effect; as may be done with respect to judgments in all civil actions. But it is manifest, that a judgment on a criminal prosecution cannot be carried into effect, beyond the jurisdiction of the

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state, within which the offence was committed; or, if this might be done by virtue of any act of congress, founded upon such a construction of the constitutional provision, it is clear that such power has never been challenged; and it is hardly possible to conceive that such a construction will ever be adopted, so long as any portion of sovereignty remains with the states. For the right and duty of punishing offences must necessarily be limited to the authorities, against which the offences have been committed. Indeed the provision in the second section of the fourth article of the constitution of the United States is wholly inconsistent with the supposition of such a power.

That section provides that "A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime." This is a perfect recognition of the independent sovereignty of the states, in regard to crimes committed within their territory, as well as of the local nature of crimes and punishments. If the faith and credit, to be given to judicial proceedings, relates to criminal as well as civil judgments; and that faith and credit, according to the act of congress, as construed by the Supreme Court of the United States, means that the judgment shall have the same effect in the state in which it is produced, as in that in which it was rendered, it would follow, that an unexecuted sentence in one state might be executed in another; which never was intended. On the contrary, the constitution has merely made that obligatory between the states, which between nations entirely foreign to each other was done from comity, viz., the delivering up of criminals who have fled from justice.

I think this proves satisfactorily, that the clause in the constitution of the United States, relating to the faith and credit to be given to judgments, has no effect whatever on judgments upon criminal suits; and that, in this respect,

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the relation of the states to each other is left wholly unaffected by the constitution.

This will readily be admitted in regard to any direct effect of such judgments, upon the persons of such fugitives, as may be found within our territory. No one supposes that they can be proceeded against and punished, either in their persons or property, in virtue of any judgment, which may stand against them in the state from which they fled. Why then should they be collaterally affected by the consequences of any such judgment? A disparagement of character, and incompetency to testify, are a part of the punishment of crime, either at the common law, or by statute. If the penalty do not extend beyond the jurisdiction, against which the crime was committed; then incompetency, which is the effect and consequence of crime, and part of the penalty, cannot reach beyond the limits of the state, whose laws have been violated.

It has, however, been said that it is the infamy which takes away the right to testify; and that the fact of infamy, being proved by the record of the conviction and judgment, is incontrovertibly established; and, therefore, incompetency must follow. But if, by the constitution of the United States, the faith and credit, to be given to a record of a judgment of another state, has no relation to criminal proceedings; then it has been shown, I think, that such record cannot be received to exclude a witness.

If it should be provided by the laws of New York, that a person convicted of bribery at an election should be disfranchised, and one thus convicted should remove into this state, and reside here the term provided in our constitution to make him an elector, could he be deprived of this privilege on account of such conviction? Certainly not; because the penal laws of one state do not extend into any other, and yet, if such conviction had the same effect here as in New York, such would be the consequence.

For the foregoing reasons, and others which it would

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require too much time to enumerate, we have come to the opinion that there is no difference in the effect of a conviction, in regard to the competency of a witness, between any state in this Union and any foreign state; and that in neither case is the witness to be excluded on account of such conviction.

Whether such conviction could be offered to the jury, for them to weigh against the credit of the witness, is a different question; which need not be decided now; for we are all clearly of opinion, for the reasons which will be now stated, that, if the only effect of the conviction would be to impeach the credibility of the witness, it is no sufficient ground for a new trial.

Proceeding upon the ground, that the witness would have been permitted to testify, had the fact since discovered been known, and presented to the Court, at the time of the trial; and that, if the law were otherwise, there would be no right to a new trial; because there was no error or irregularity in the course of the trial; it has come to a question of discretion with the Court, whether a new trial shall be allowed, because the evidence now obtained might affect the credibility of this witness, and by possibility might have occasioned doubts in the minds of the jurors, sufficient to have produced an acquittal.

Certainly cases may arise, when the exercise of this power in the Court would be salutary and wise; but every case of discretion must depend upon its circumstances, and be judged of with due regard to the rights of the public, as well as the interest of the prisoner. In cases which affect life, duty as well as inclination would insure the most favorable consideration of all circumstances, which might have a tendency to protect innocence from punishment, and even to extend to the guilty all the legal advantages of a trial. But when there has been a trial, which the Court are satisfied was fair and impartial, and in which all the legal rights of the party accused were observed, and a new trial is sought for; the Court are

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bound to look into the evidence, upon which the verdict was founded, in order that they may ascertain whether the cause, suggested in support of the motion, is such as would or ought to produce a different result in the minds of another intelligent jury. It is true, it cannot be known what effect may be produced upon other men's minds, by any specific kind or degree of evidence; and with that, in the course of the trial, the Court have no concern; but on a motion to their discretion, they must necessarily revise the evidence, and must judge for themselves, of the probable bearing of the circumstances, relied on to support the motion.

Having decided that to grant new trials in capital cases, is within the power of the Court; that the exercise of this power, where there has been no error on the trial, is discretionary; if every suggestion should be listened to, without regard to the merits of the case, or the just bearing of the fact suggested, it is certain that the course of public justice would be much obstructed; and that the punishment of crimes would often be evaded. It is a power to be used sparingly for the protection of innocence, not to screen the guilty.

Now, in the case before us, the only advantage the prisoner would have on another trial, which he had not before, would be to show that Stoddard, one of the witnesses who testified against him, was not deserving of credit; because he had been convicted of larceny in New York. If this witness had gone to the jury wholly unimpeached, and his testimony had been material and uncorroborated, the case would be a strong one for the exercise of the discretion of the Court, in granting another trial.

But this witness was impeached at the trial, by the evidence of two convictions of larceny within the commonwealth; and it was known to the jury that he had but just left the public prison, under a pardon granted by the executive, for the sole purpose of rendering him a competent witness. Surely evidence of another conviction

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of a similar offence in another state, of which he had not been pardoned, would have added nothing to the weight of evidence against his credibility. He was considered as a degraded person, both by the Court and jury; and in the charge to the latter by the Court, they were expressly told that, unless they found his testimony corroborated by unimpeached witnesses, he ought not to be believed. The same observations applied to another witness, who appeared under similar circumstances.

In the opinion of the Court, there was sufficient evidence to justify the verdict without the testimony of either of those men. An insurrection had taken place among the prisoners. The man, with whose murder the prisoner is charged, was found beaten and mangled in a cruel manner. The prisoner was seen, with many other convicts, rushing from the place where the murdered man lay, in pursuit of another victim, who was seized by the prisoner, and in danger also of being murdered, had he not been rescued by the officers of the prison. The prisoner, and one other convict who was tried with him, was armed with a club or bar of iron. The prisoner uttered expressions indicative of the deed which had been done, and of his intentions to wreak his vengeance upon others. These facts were proved by respectable officers of the prison, and were uncontradicted.

Had there been no other evidence, any firm and intelligent jury would have found the prisoner guilty. In addition to this, the two pardoned convicts swore positively to the blows having been given by the prisoner, which caused the death of the murdered man. Both these last witnesses were impeached, as to their credibility, by their convictions.

Now, we cannot believe that, had the jury known of the conviction of Stoddard in New York, that fact would have weighed a feather in estimating his testimony. Neither can we believe that another jury, acting upon fair principles, would be differently affected by the fact.

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Under these circumstances, to grant a new trial would be only to prolong the suspense, and increase the anxiety of the prisoner, without any final advantage to him; and we do not feel authorized to surrender the principles of justice, to feelings of compassion or sympathy.

Motion overruled.


[Note 1] By the statute of 1805, c. 113, § 11, it is "enacted, that respecting all crimes and offences, which may be committed in the state prison aforesaid, and the precincts thereof, the said prison and precincts shall, in all judicial proceedings, be deemed and taken to be as well within the county of Suffolk, as within the county of Middlesex.

[Note 2] 3 Dallas, 515.

[Note 3] 1 Bay's Rep. 372, State vs. Hopkins.

[Note 4] Foster's Crown Law, 22.

[Note 5] 18 Johns. 187, People vs. Goodwin.

[Note 6] 13 Mass. 221. - 5 Mass. 53. - Ibid 261.

[Note 7] 7 Cranch, 481

[Note 8] 1 Chitty's Crim. Law, 771.

[Note 9] 6 D. & E. 638.

[Note 10] 2 Mass. 303.

[Note 11] 4 Mass. 391.

[Note 12] Vide 5 Mass. 261, Commonwealth vs. Waite.

[Note 13] 4 Comm. 355.

[Note 14] 1 Lev. 9.- T. Jones, 153. - 10 St. Trials, 416.