and also, an explanation of the motive by which the witness was induced to use those expressions: he has no right to go further and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness. Mr. Phillips observes: as the object of cross-examining a witness respecting former statements, supposed to have been made by him, is to impeach the truth and credit of his testimony; so, on the other hand, the object of the reexamination is to give him an opportunity of shewing the consistency of his statements and of vindicating his character. OF THE COMPETENCY AND CREDIBILITY OF WITNESSES. competency, When a witness is produced, and before he is objections to sworn, any objection to his competency ought to be stated.1 Objections to the credibility of a witness to credibility: must be reserved for the defence, or the reply of the prosecutor. An exception to the credibility of a witness does not prevent his being sworn. witnesses. A deaf person, or one who has lost the power Deaf and dumb of speech, may, respectively, be questioned or give evidence by writing or by signs. A deaf and dumb person, who enjoys the full use of his reason, and is not otherwise incompetent, may be examined by writing, or by signs, through the medium of a person capable of conversing, and sworn to interpret faithfully. (1) Judges, queen's trial. The competency of a witness may be questioned on four grounds: irreligion; defect of understanding; infamy; and interest. Witnesses exempt from these imputations are competent, though the court will judge of their credibility and the weight to be given to their testimony. An objection to the competency of a witness may be supported either by the production of other witnesses or by examining him on the voire dire: that is, the witness is sworn to answer truly all such questions as shall be put touching his interest in the matter in issue. If an objection to a witness be raised on the voire dire, it may legally be removed by the same.' As to incompetency from irreligion; a man is held incompetent to give evidence if he disbelieve in the existence of God; or if he profess not any religion which may bind his conscience to tell the truth. The proper mode of examination, for the purpose of trying the competency of an individual on the ground of irreligion, is not to question him as to his particular opinions, as, whether he believe in Jesus Christ; but to enquire whether he believe in the existence of God, and the religious obligation of an oath, and a future state; it is however said, that before a witness is sworn, and when the gospels are placed in his hand for that purpose, he may be asked whether he believes in them; for if he believe not in the gospels, how can he effectually be sworn on them? The administration of an oath, in such a case, would be (1) See Examination of Witnesses, ante. (2) 1 Phil. 22. entirely nugatory; and evidence would be given without any religious sanction, on the bare assertion of a witness. If the law requires an oath to be administered in some certain form, and a witness believes not in any form of religion, the consequence must necessarily be, that he cannot be sworn. Should the oath be administered in the usual form, before the witness's belief be enquired into, he may afterwards be asked whether he considers the form of the administration of that oath binding; if the answer of the witness be in the affirmative, he cannot be asked respecting any other mode of administering an oath, which may be deemed by some more binding." understanding; Defect of understanding may arise from Want of idiotcy or confirmed insanity, or from immaturity of intellect as in the case of children. In the lucid intervals, persons whose minds Insanity; may have sufficiently recovered are competent to give evidence.3 A competent witness must have such a share of understanding as to enable him to comprehend the nature of an oath. of a child; The admissibility of a child to give evidence Admissibility is regulated, not by his years, but by the development of his mental faculties; by his acquirement of religious knowledge, and by the sense he may entertain of an oath; under these restrictions, a child of any age may be examined on oath; and when the child has not appeared sufficiently to understand the nature and obligation of an oath, judges have often thought it necessary, for the purposes of justice, to put off (1) 1 Phil. 24. (2) Opinion of the judges, queen's trial. See ante page 212. (3) 1 Phil. 26. In competency fro n infamy, as affecting competency the trial of the prisoner, directing that the child, in the meantime, shall be properly instructed.1 It has been determined by the judges, that an infant, under seven years of age, may be sworn, and give evidence upon oath, provided he appears to have sufficient discretion.2 With respect to incompetency, arising from infamy, it may be observed, that a very marked distinction exists between the competency and credibility of a witness; a witness of notoriously depraved and infamous character may be legally competent, and, therefore, must be sworn, though the degree of credibility attaching to his evidence may be inconsiderable, or he may be altogether unworthy of belief. The infamia and credibility juris destroys the competency of a witness, the infamia facti affects his credibility. The offences which, from the infamy attaching to them, are considered in law sufficient to incapacitate from giving evidence in courts of justice, are: treason; forgery, and all other offences coming under the denomination of felony; perjury; subornation of perjury; barratry; or bribing a witness to absent himself and not give evidence, and some other offences which it is not necessary to advert to. Judgment of outlawry, for treason or felony, has the same effect of rendering the outlaw incompetent as a witness, as judgment after a verdict or confession.3 Sentence not confirmed, prisoner in all cases a competent witness, whatever may have been the crime. A soldier under sentence of a court martial, the sentence not having been approved by the superior authority, is in every case, a competent witness. If the sentence be confirmed, he is (2) 1 Hawk. 612. (3) 1 Phil. 30. (1) 1 Phil. 20. (4) For the manner of procuring the attendance of witnesses in military or civil custody, see pages 192, 193. still a competent witness, unless incompetency from infamy arise from the sentence. Infamous the criterion of Some kinds of punishment were formerly punishment not thought to be marks of infamy, but the dis- legal infamy. tinction is now clearly settled that the legal infamy arises not from the nature of the punishment but the nature of the offence.' must be proved; Infamy, arising from the sentence of a court how infamy of justice, must be established by regular proof of a conviction and judgment in the due course of law. The rule most commonly laid down is, that a conviction makes the witness incompetent. But it is not to be understood, that conviction alone incapacitates; the conviction may possibly have been quashed, on a motion in arrest of judgment. The judgment, therefore, as well as the conviction, must be proved; and the general rule is, that the judgment can only be proved by the record, or by a copy of the record. The fact of the offence having been committed may not be proved vivá voce. Even an admission by the witness himself, of his being in prison under judgment for grand larceny, or of his having been guilty of perjury on another occasion, will not make him incompetent, however it may affect his credit. The proof of the conviction of desertion by a court martial conviction of will not render a witness legally incompetent, although this crime is a felony at common law; but were it otherwise, the competency of a deserter, before he could be produced as a witness in a military court, in almost every case, must have been restored, as he would (1) 1 Phil. 30. 3 (3) 1 Sid. 51. (4) 1 Phil. 31. desertion by a court martial not a cause of incompetency. |