credibility of his testimony. The disqualification is a purely personal one; it has its origin in positive law; is not founded upon natural law; and being of a penal character, must be strictly construed.1 In a few jurisdictions, however, it has been held that a foreign judgment of conviction will disqualify.2 Whether a conviction in another State was of a crime infamous or not, is to be determined by the law of the forum; the transcript of the record should therefore set out the indictment, that the court may determine this point.3 § 18. Effect of Conviction of Minor Offence. We have already seen that at common law, all crimes were not deemed infamous, and that it was the infamy of the crime, and not the nature or mode of punishment, that rendered the person convicted incompetent as a witness. There are many offences involving both falsehood and fraud, which are punished as infamous crimes are usually punished, and yet are not infamous crimes, and will not exclude the offenders as witnesses. Among these minor offences are adultery; conspiracy to cheat and defraud creditors; dealing faro; embezzlement by a public officer;" 1 Commonwealth v. Green, 17 Mass. 515; National Trust Co. v. Roberts, 42 N. Y. Superior, 100; Sims v. Sims, 75 N. Y. 466; reversing s. c., 12 Hun, 231; National Trust Co. v. Gleason, 77 N. Y. 400. Thus, it is held in Alabama, that a conviction for libel in another State will not disqualify, Campbell v. State, 23 Ala. 44; nor will a foreign conviction of petty larceny so operate in Virginia, Uhl v. Commonwealth, 6 Gratt. (Va.) 706; what effect it will have in Louisiana, see Klein v. Dink grave, 4 La. Ann. 540. In New Hampshire, it is held that a conviction of a crime in another State is not admissible in evidence for the purpose of impeaching the credit of a witness. But a conviction in another State of a crime which, by the laws of such State, disqualifies the party from being heard as a witness, and which, if committed in New Hampshire, would have operated as a disqualification, is sufficient to exclude him from testifying there, in the same manner as if it had been committed, and the conviction had taken place in New Hampshire. Chase v. Blodgett, 10 N. H. 22. 2 State v. Foley, 15 Nev. 64; s. c., 37 Am. Rep. 458; State v. Chandler, 3 Hawks (N. C.) 393 (one of the three judges doubting). The cases of Cole v. Cole, 1 Har. & J. (Md.) 572; State v. Ridgely, 2 Harr. & M. (Md.) 120; and Clarke v. Hall, Id. 378, are not in point, as in those cases the judgments of conviction were not foreign ones, having been pronounced in England prior to the Revolution. 3 Kirschner v. State, 9 Wis. 140. + Supra, § 16. 5 Schuylkill v. Copeley, 67 Pa. St. 6 Little v. Gibson, 39 N. H. 505. 8 344. 9 Schuylkill v. Copeley, supra. keeping a bawdy-house;1 maliciously obstructing the passage of cars on a railroad; 2 obtaining goods by false pretences ;3 petit larceny ; receiving stolen goods;5 unlawfully cutting timber; violating a city ordinance; and many others; but in the case of most of them the conviction may be shown for the purpose of impeaching the credibility of the witness. § 19. Removal of Incompetency by Pardon, Reversal of Judgment, or Expiration of Sentence. The disability of infamy may be removed: (1) by a pardon; (2) by reversal of the judgment; and, at least in one State,8 (3) by the expiration of the sentence, the convict having suffered the full punishment inflicted upon him. While the rule is a general one, that a pardon, regularly granted, completely removes the disability; yet where a statute, in express terms, annexes the disability to the conviction, a pardon will not remove it.10 Thus, a conviction for perjury, under the statute, disqualifies, notwithstanding the offender be pardoned." 1 Deer v. State, 14 Mo. 348. 2 Com. v. Dame, 8 Cush. (Mass.) 384. 3 Utley v. Merrick, 11 Metc. (Mass.) 302. 4 Pruit v. Miller, 3 Ind. 16; Car penter v. Nixon, 5 Hill (N. Y.) 260; Shay v. People, 22 N. Y. 317; s. c., 4 Park. Cr. 353; Welsh v. State, 3 Tex. App. 114. Contra, Lyford v. Farrar, 31 N. H. 314, and cases cited in note to section 15, supra. 5 Com. v. Murphy, 3 Pa. L. J. Rep. tions affecting other persons which 290. may well warrant his exclusion from 6 Koller v. Pfirth, 2 Penn. (N. J.) the halls of justice. It is not con 723. 7 Cheatham v. State, 59 Ala. 40. 8 West Virginia. • United States v. Rutherford, 2 Cranch, C. C. 528; Yarborough v. State, 41 Ala. 405; Klemm v. Dinkgrave, 4 La. Ann. 540; Baum v. Clause, 5 Hill (N. Y.) 196; and even though the charter of pardon incorrectly states the date of the conviction, it is sufficient, if it be possible to show that it was intended to cover, and does cover, the offence of which the record shows the witness to be sistent with the interests of others, nor with the protection which is due to them from the State, that they should be exposed to the peril of testimony from persons regardless of the obligation of an oath; and hence, on grounds of public policy, the legislature may well require that, while the judgment itself remains unreversed, the party convicted shall not be heard as a witness. It may be more safe to exclude in all cases than to admit in all, or attempt to distinguish by investigating the grounds on which the 1 Even though the pardon be granted after the convict has suffered the entire punishment imposed upon him, it will rehabilitate him. The convict becomes competent to testify notwithstanding a clause in the pardon declaring that nothing contained therein is intended to relieve the prisoner from the legal disabilities arising from his conviction and sentence, but solely from imprisonment; such clause is repugnant, and will be treated as surplusage.2 To prove the pardon, the charter of pardon, under the great seal of the State, must be produced.3 The reversal of the judgment of conviction will in all cases restore competency; for in such event there is no conviction and consequently no infamy. The fact of reversal must be shown in the same manner as the judgment of conviction is shown, viz., by production of the record of reversal, or an exemplification thereof, in cases where the latter course is permissible. pardon may have been granted. And it is without doubt as clearly within the power of the legislature to modify the law of evidence by declaring what manner of persons shall be competent to testify, as by enacting, as in the Statute of Frauds, that no person shall be heard viva voce in proof of a certain class of contracts. The statute of Elizabeth itself seems to place the exception on the ground of a rule of evidence, and not on that of a penal fulmination against the offender. The intent of the legislature appears to have been not so much to punish the party, by depriving him of the privilege of being a witness or a juror, as to prohibit the courts from receiving the oath of any person convicted of disregarding its obligation. And whether this consequence of the conviction be entered on the record or not, the effect is the same. The judgment, under the statute, being properly shown to the judges of a court of justice, their duty is declared in the statute independent of the insertion of the inhibition as part of the sentence, and unaffected by any subsequent pardon. The legislature, in the exercise of its power to punish crime, awards fine, imprisonment, and the pillory against the offender; in the 1 State v. Blaisdell, 33 N. H. 388; 2 People v. Pease, 3 Johns. (N. Y.) Cas. 333. 3 State v. Blaisdell, 33 N. H. 388; Cooper v. State, 7 Tex. App. 194. A witness shown by production of the record to have been convicted of felony and sentenced for a term yet In West Virginia, it is held that where a convict has undergone the punishment of imprisonment in the penitentiary under his sentence, the statute restores to him competency as a witness. And the fact of his being at liberty after the length of time for which he was sentenced, is prima facie evidence that he has suffered the punishment.1 § 20. Abolition of the Disability by Statute. — In a large number of the States, statutory changes in the law have wholly abolished the doctrine of incompetency by reason of conviction of crime, however infamous, leaving the fact of such conviction to be considered by the jury upon the sole question of the credibility of the witness. Such is the present state of the law in California,2 Colorado, Connecticut, Delaware,5 Georgia, Illinois, Indiana, Iowa, Kansas,10 Maine, Massachusetts, 12 Michigan, 13 Minnesota, 14 Missouri,15 New Hampshire, 16 New Jersey, New York,18 North Carolina, 19 Rhode Island,20 Vermont,21 Virginia,22 and Wisconsin.23 17 unexpired, and so disqualified, will not be presumed to have been pardoned merely because he is in attendance and apparently at large, but may be interrogated whether he has received a pardon. Schell v. State, 2 Tex. App. 30. 1 State v. Williams, 14 W. Va. 851. Compare State v. Connor, 7 La. Ann. 379. To the contrary, see United States v. Brown, 4 Cranch, C. C: 607; and see also State v. Benoit, 16 La. Ann. 273. The fact that sentence has been suspended, pending an appeal, will not render the convicted person competent. Rittar v. Democratic Press Co., 68 Mo. 458. And one who has been convicted, but has not paid his fine, is not a competent witness for his co-defendant. Ellege v. State, 24 Tex. 78. 2 Hittell's Code, § 11,879. 3 Gen. Laws, 1877, ch. 104. 11 9 Code 1851, art. 2388; Rev. Code 1880, § 3636. 10 Comp. Laws 1879, § 3847. 11 Laws 1861, ch. 53; Woodman v. Churchill, 51 Me. 112. 12 Gen. Stat. ch. 131, § 13; Pub. Stat. ch. 169, § 18; Laws 1852, ch. 312, § 60. Newhall v. Jenkins, 2 Gray (Mass.) 562. 13 Rev. Stat. 1846, ch. 102, § 99; Laws 1861, ch. 125, p. 118. 14 Stat. 1878, p. 792, § 7. 15 See United States v. Biebusch, 1 Fed. Rep. 213; s. c., 1 McCrary, 42. 16 Gen. Laws 1878, ch. 228, § 27. 17 Rev. p. 378, § 1. 18 Laws 1869, ch. 678; Code Civ. Pro. § 832; Delamater v. People, 5 Lans. (N. Y.) 332; Donohoe v. People, 56 N. Y. 208; National Trust Co. v. Gleason, 77 N. Y. 400; Perry v. People, 86 N. Y. 353; s. c., 62 How. Pr. 148; People v. McGloin, 91 N. Y. + Rev. Stat. 1849, tit. 1, § 141; Gen. 241. Stat. 1875, p. 440. 5 Laws 1874, p. 652. 6 Code 1882, § 3854. See also Frain r. State, 40 Ga. 529. 7 Rev. Stat. 1880, p. 505, § 1; Bartholomew v. People, 104 Ill. 601. $ Code, § 243; Glenn v. Clore, 42 Ind. 60. 19 Batt. Rev. 1873, p. 388, § 14; State v. Harston, 63 N. C. 294. 2) Pub. Stat. 1882, ch. 214, § 38. 21 Rev. Stat. 1880, § 1008. 22 Johnson's Case, 2 Gratt. (Va.) 581. 23 Rev. Stat. 1878, § 4073; Sutton v. Fox, 55 Wis. 531. In a few States an exception is made in the case of a person convicted of perjury; such person not being permitted to testify, even though he has received a pardon, or has suffered the full punishment provided by law for the offence. Among these States are Florida,1 Maryland,2 Mississippi, and South Carolina.4 In Arkansas, consent of the parties is essential to the admissibility of the testimony of a person convicted of one of the higher grades of crime.5 In Tennessee, such persons are incompetent until restored to full rights of citizenship, in accordance with the law provided for that purpose. In Texas, the reversal of the judgment (if for felony) or a pardon is essential, and in the case of perjury, even a pardon will not rehabilitate the witness.7 § 21. Accomplices. The doctrine of the common law which forbids the reception of accomplice testimony, seems to be founded upon the interest of the witness in the event of the trial, rather than upon his disqualification from a moral standpoint. These witnesses generally testify against their confederates, under an understanding, express or implied, that their aid in bringing the principal offender to justice will secure to themselves, either absolute immunity, or at least a considerable mitigation of the severity of the punishment which would, in the nature of things, be meted out to them in case they did not so testify. For this reason the competency of this class of witnesses will be treated more fully when we come to consider the disqualification of interest. But it is proper to state in this place, that however heinous his guilt may be, an accomplice or accessory, even though indicted, who has not been convicted and sentenced for an infamous crime, is not, on the ground of infamy, an incompetent witness. In many cases the principal offender could not be convicted without the testimony of the particeps criminis, and it is this fact which justifies his admission to testify.9 1 Thomp. Dig. pp. 334, 335; Dig. of Laws, 1881, p. 518. 2 Rev. Code 1878, p. 749, § 1. 3 Rev. Code 1880, § 1600. 4 Gen. Stat. 1882, § 2532. 5 Dig. of Stat. 1874, § 24. 6 Stat. 1871, § 3812. 7 Code Crim. Pro. art. 730 8 Infra, § 42. 9 United States v. Lancaster, 2 McLean (U. S.) 431; United States v. Troax, 3 Id. 224; United States v. Henry, 4 Wash. (U. S.) 428; Marler v. State, 67 Ala. 55; s. c., 68 Id. 580; Solander v. People, 2 Col. T. 48; State v. Shields, 45 Conn. 256; Gray v. Peo |