relative to a transaction with the deceased. And the testimony of a party as to transactions by him with a deceased person from whom the opposite party derives title may properly be received, so far as it is merely an admission against his interest of payments made by such deceased person.1 On the other hand one who dealt with an agent, since deceased, cannot prove the statements of such agent, in relation to a transaction between himself and such deceased agent; and the fact that a deposition of such deceased agent, which had been taken on the part of the plaintiff, to be used on the trial, has been put in evidence by the defendant, will not render the latter competent to testify as to his transactions with such agent referred to in the deposition.3 One partner is an agent of his co-partners, within this rule.1 Again, an administrator who has paid out of the estate of his intestate money for the support and education of the heirs, without an order of the court, in proving the items so paid is within the prohibition of sections 4069 and 4070, and cannot testify in his own behalf, as a witness, in respect to any transaction or communication in relation to such payments, by him personally, with a deceased heir to whom it is alleged such payments were made for the benefit of the other heirs.5 § 145. Wyoming Territory. - Neither interest in the event, the fact of being a party to the record, nor conviction of crime, will exclude a witness, but these facts may be shown to affect the credibility of the witness. The exceptions are, persons of unsound mind at the time of production to testify, children under ten, husband and wife, attorneys, clergymen, and assignors who were incompetent before the assignment was made. With regard to transactions with deceased persons, etc., it is provided as follows: "No party shall be allowed to testify by virtue of section. three hundred and nineteen, when the adverse party is the 1 Crowe v. Colbeth, 24 N. W. Rep. 478. 2 Cornell v. Barnes, 26 Wis. 473. 3 McIndoe v. Clarke, 15 N. W. Rep. 17. Rogers v. Brightman, 10 Wis. 55; Lawrence v. Vilas, 20 Id. 381. See also Bill v. Stoll, 55 Id. 216. 5 In re Fitzgerald, 15 N. W. Rep. 794. 6 Laws 1876, p. 73, § 319. Ibid. § 321. The language is substantially the same as contained in the Kansas statute, § 3851. See supra, p. 183, and in the Kentucky statute, § 26. See supra, p. 185. guardian of an idiot, or a lunatic, or a deaf and dumb person, or the executor or administrator of a deceased person, or the guardian of a child or children of a deceased person, when the facts to be proved transpired before the death of such deceased person, except in suits upon contracts which shall have been entered into by deceased persons, by agents, in which cases, if the agent be a witness, the opposite party may testify as to all that transpired between such party and the agent in relation to such contract, and the making of the same; excepting, also, cases where the claim or defence is founded on book account, then the party shall be permitted to testify that the entries are in his handwriting, that the book containing the same is his book of original entries, and if the original entries in said book of accounts have been made by a person who at the time of such trial is deceased, or a disinterested person, who is a non-resident of the Territory, on proof of such decease and non-residence, and that said entries are in the handwriting of such person, or such proof by the party as hereinbefore provided, then it shall be competent to admit said book of original entries as evidence, the weight to be given to such evidence in either case, however, being left to the court or jury to determine; and in all actions by or against a surviving partner or partners, or a surviving joint contractor or contractors, any party to the action shall be incompetent as a witness to testify to transactions which took place with, or declarations or admissions made by the deceased partner, or joint contractor, in the absence of the surviving partner or joint contractor. The deposition of a party shall not be used in his own behalf, unless the legal notice required in the cases where depositions are to be taken shall also specify that the deposition to be taken is that of the party; Provided, That if the deposition of a party be taken in any pending suit, and such party shall die before the trial thereof, it shall be lawful for the opposite party to testify as to all matters contained in said deposition." 1 1 Ibid. § 320. CHAPTER IX. STATUTORY COMPETENCY OF DEFENDANTS IN CRIMINAL CASES.1 § 146. In General; and herein of the Necessity of a Statute. § 147. Character of the Enabling Acts. § 148. Extent of the Right to testify. § 150. Effect of Omission to testify; Comments by Counsel. § 151. Effect of becoming a Witness; Legitimate Comments. ute. § 152. His Testimony Admissible against him on a New Trial. § 146. In General; and herein of the Necessity of a StatIn a former chapter we discussed the common-law rules as to the competency of accused persons as witnesses,2 and found that according to those rules, a sole defendant in a criminal case could not testify at all, but that one of two or more jointly charged, could, under certain circumstances, testify either against or on behalf of the others.3 But the tendency of legislation and adjudication, ever since the reform movement began, has been in the direction of the removal of the barriers of incompetency, and the ancient theory of closing the mouth of the witness, lest he falsify, has given way to the modern one of encouraging free expression, that truth and justice might not be stifled by technicalities. The rule in civil actions of permitting the parties to testify has, in very many of the states and territories, and very recently in England, been extended to criminal cases, 1 For a compilation of the statutes on this subject, the reader is referred to the note at the end of this chapter, page 257. 2 Supra. §§ 42, 43. 3 For further decisions as to the competency of one defendant as a witness for or against one jointly charged with the same offence, see State v. Gigher, 23 Iowa, 318; State v. Nash, 10 Id. 81; State v. Stewart, 51 Id. 312. Chandler v. Commonwealth, 1 Bush (Ky.) 41; Christian v. Commonwealth, 13 Id. 264; Commonwealth v. Brown, 130 Mass. 279; Lisle v. Commonwealth, 6 Ky. L. Rep. 229; State v. Drake, 4 West Coast Rep. 574; State v. Barrow, 76 Me. 401; People v. Van Alstine, 6 Crim. L. Mag. 715; Oliver v. Commonwealth, 77 Va. 590; Henderson v. State, 70 Ala. 23; Moore v. State, 15 Tex. App. 1; State v. Henderson, 47 Ind. 127. and not only the injured complainant, but the accused defendant likewise, has had the door of the witness-box opened to him. But it is only by virtue of the several enabling acts that defendants in criminal proceedings are permitted to testify in their own behalf. The courts have uniformly maintained the doctrine that the statutes removing the incompetency of parties and others because of their interest in the event have no application to criminal cases. The relaxation of the common-law rule as to parties had no application to prosecutions for crime.2 held in People v. Thomas, 9 Mich. 314, that he should not be permitted to testify. Under the Bankrupt Law of 1867, as amended in 1874, whereby the alleged bankrupt became a competent witness, it was held in United States v. Black, 12 Bankr. Reg. 340, in the U. S. Circuit Court, Massachusetts, that he was not a competent witness in a criminal proceeding against him for secreting assets and fraudulently omitting them from the schedules. The state statute does not extend to United States courts held within the boundary of the state. United States v. Hawthorne, 1 Dill. (U. S.) 422. In Pennsylvania, under the statute (prior to amendment of 1877) granting the privilege only to persons charged with offences "not above the grade of misdemeanor," it was held in Stevick v. Commonwealth, 78 Pa. St. 460, that a defendant was incompetent to testify, if there be a count in the indictment for felony joined with that of misdemeanor. S. P., Hunter v. Commonwealth, 79 Pa. St. 503. 1 In Deloohery v. State, 27 Ind. 521, under the statute permitting a defendthe court, per Elliott, C. J. say: ant "to make a statement," it was "A party to a suit was not a competent witness therein for himself at common law. And as the state has only removed the disability in civil causes and proceedings, and not in criminal ones, the latter are still governed by the common-law rule." And previously the same court, in Hoagland v. State, 17 Ind. 488, held that although in civil causes and proceedings, no person should be disqualified as a witness because he is a party, or interested in the event; and parties may testify on their own behalf, or compel the adverse party to testify; and although the criminal practice act contained the following provision: "The following persons are competent witnesses: First. All persons who are competent to testify in civil actions," defendants in criminal cases were not competent to testify, inasmuch as at the time of the enactment of the statute regulating the competency of witnesses in criminal cases, the parties to civil actions remained incompetent as at common law, and, since the amendment abrogating the rule was expressly directed to civil causes or proceedings, the provision of the criminal practice act intended to adopt the law of competency in civil actions, as it then stood, not as it might thereafter become, and the ruling of the court below rejecting the defendant as a witness was sustained and the judgment of conviction affirmed. So, also, in Michigan, 2 Patterson v. People, 46 Barb. (N. Y.) 625; Williams . People, 33 N. Y. 688. S. P., State v. Bixby, 39 Iowa, 465; State v. Darrington, 47 Iowa, 518; State v. Connell, 38 N. H. 81; State v. Flanders, Id. 324; Commonwealth v. Lenox, 12 Phil. (Pa.) 601. - § 147. Character of the Enabling Acts. These enactments are permissive merely. Some few of them only permit the accused to make a "statement" to the jury, sworn, or unsworn, if he chooses to do so; but the great majority of them provide that the accused may be a competent witness. Nowhere do we find it in terms stated that he shall be a compulsory one, and as statutes in derogation of the common law are construed strictly;2 and furthermore, as the fifth amendment to the constitution of the United States establishes as the fundamental law that "no person . . . shall be compelled in any criminal case to be a witness against himself," it may safely be asserted that nowhere can the prosecution force the accused to testify against his will.3 The sole purpose of permitting him to testify on his own behalf is to enable him to present his own defence. The constitutionality of these acts has rarely been questioned, and in one wellconsidered case, has been distinctly asserted.5 ... § 148. Extent of the Right to testify. The effect of these enabling acts is to remove all the disabilities of the defendant, and to permit him to present such a statement as he can, in exoneration of the crime with the commission of which he stands charged. The examination is governed by the same rules as are applied to other witnesses. The fact that the proof is strong against him, and his story an improbable one, affords no ground for rejecting his testimony. Therefore where the court, upon the cross-examination of the accused, having developed the fact that he had previously served a term in the state prison, instructed the jury wholly to disregard his testimony, this was held erroneous, since while the court were to decide as to its admissibility, the jury had the right to determine the degree of credit to which it was entitled.8 1 Infra, § 153. 2" When a statute alters the common law, the meaning shall not be strained beyond the words, except in cases of public utility when the end of the act appears to be larger than the enacting words." Potter's Dwarris on Stat. 186. 3 State v. Cohn, 9 Nev. 179. Delamater v. People, 5 Lans. (N. Y.) 332. 7 State v. Kelly (Iowa), 11 N. W. Rep. 635; Marx v. People, 63 Barb. (N. Y.) 618; Bralich v. People, 65 Id. 48. 8 Newman v. People, 63 Barb. (N. Y.) 630. As to the competency of a defendant in bastardy proceedings, see People v. Duell, 6 Abb. (N. Y.) Pr. 285; Carter v. Krise, 9 Ohio St. 402. |