#### THE STATE *vs.*JAMES TOWNSEND, WILLIAM L. TOWNSEND, BENJAMIN TOWNSEND.

■ Where a riot took place at a religious meeting, it was *held*that the rioters could not be indicted both for the *riot*and for *disturbing the religious meeting;*as the punishment for the former covered the latter offence.

A person who does not believe in a God and a future state of existence, cannot be a witness.

His belief on this subject may be proved by evidence of his declarations; and his own assertion of a change of belief, made at the time he is offered to be sworn, will not restore him to competency.

Indictment for a riot.

In this case Edward Croft was called as a witness for the defendants, and objected to for want of religious belief. It was proved by James Fountain, James Stevens and Daniel Stevens, that Croft had repeatedly denied his belief in a future state of rewards and punish- - menls: that he disbelieved altogether in a future state of existence. He said that man was like the tree that falls ; he goes to the dust and there is no more of him. The witness asked him if he did not believe in the existence of a God. He replied that he did not know whether there was a God or not.

Croft now asked to make a statement to the court in relation to his religious belief, which was objected to by the prosecuting attorney, on the ground that he was already discredited.

*The Court*asked him if he could prove by any other person the expression of any other opinions on the subject of responsibility in a future life, than those which had been testified to. He said he could not, but desired to make a statement. The court determined to hear him, saving the question as to the effect of his statement.

Mr. Croft. — I have always held my mind open to conviction on all subjects. I have read much on this ; on both sides of the question. Whatever may have been my belief heretofore as to the existence of a God, I do now believe, from reading and reflection, that there was and is a supreme *first*cause; and will be a future state of existence, and of rewards and punishments. I think I have before expressed my change of opinion on this subject to others, but to no one present.

The court *agreed*that he was disqualified by the evidence ; but *divided*on the effect of his present statement, as to restoring him to competency.

The *Chief Justice,*(J. M. Clayton,)

said : It is an important question as well as a delicate one, and has not been heretofore decided. The court is now divided upon it. My opinion is, that the witness is incompetent. He has been proved by *testimony,*that is, by the *544*oath of competent*and credible witnesses, toh ave, recently, entertained opinions which render him incompetent as a witness. With such opinions we cannot bind him by any form of oath we can put to him. The ordinary mode of attestation loses its sanction when applied to a man who does not *believe*that he can be punished hereafter for its violation. But the question is, w'hat is this man’s belief now? We can only know this by evidence; and the only *legal*evidence before us goes to disqualify him. He cannot be sworn for any purpose ; shall we then take his simple assertion to qualify himself, after being disqualified by legal testimony. The case might arise of a witness, the sole one to a deed, perfectly incompetent, and on that ground perfectly *unworthy of credit;*and yet on his own statement he might enable himself to be a witness. It is, therefore, on the ground that the statement of this witness is not to be regarded in any sense as *evidence*to rebut or remove the effect of testimony which disqualifies him, that I think him still incompetent. If he could prove by others the declaration of a change of opinions and views on this subject, I should incline to admit him as a competent witness. The question is not now of much consequence to the witness, after this public statement of his belief in a future state, but it is of great consequence to the administration of justice to preserve the sanctions of truth. A majority of the court are for rejecting the witness, *(a)*

Judge *Layton*dissented.

Layton, *Justice.*

I think the person produced ought to be exam-ed as a witness. The objection is one which goes to his credit rather than to his competency — it effects his present opinions, not his belief in times past. And to this effect, I apprehend are the leading authorities.

Several objections may be urged against the competency of witnesses, as infancy, interest in the event of a suit, infamy of character and a defect of religious belief. In most of these cases, the practice has been to examine the person produced asa witness on his voire dire and to admit him, if, by his answers, he purge himself of the objections against him. Infamy of character, as a conviction for an infamous offence, can be removed by pardon. As to religious belief, *545it appears sufficient if the person declare his belief in the existence of God and in the obligation of an oath.

In *Starkie on Evidence,*we find the following laid down as the practice in England on this subject — “ before a witness takes an oath he may be asked whether he believes in the existence of a God, in the obligation of an oath, and in a future state of rewards and punishments; and if he does, he may be admitted to give evidence.” 1 *Stark. Ev.*93; *R.*vs. *Taylor, Peake’s N. P. R.*11. “And it seems he ought to be admitted if he believes in the existence of a God who will reward or punish him in this world, although he *does not*believe in a *future*state.” 1 *Stark. Ev.*93; and *Omichund*vs. *Barker, Willes,*550. In *Hunscum*vs. *Hunscum, 15 Mass. Rep.*184, it was held that a disbelief in a future state of existence alone, goes to the *credibility*of <* witness. To the same effect also have been the decisions in New York ; as in *Butts*vs. *Swartwood, 2 Cow. Rep.*431; and in *People*vs. *Matteson,*to be found in a note in 2 *Cow, Rep.*433, Walworth, circuit judge, is reported to have said that the opinion of Hoencer, chief justice, in *Jackson*vs. *Gridley,*18 *Johns.*98, was merely an obiter dictum, so far as that opinion considered the want of belief of the witness in a *future*state of rewards and punishments.

The evidence offered to prove the former opinions of this man shows that, at some former period, he did not believe in the immortality of the soul, or in a state of *future*rewards and punishments; and that he did not know whether he believed or not in the existence of God : on this latter subject it appears he expressed no opinion. It is easy to perceive the embarrassment under which a very honest witness might labor, if former opinions should be suddenly sprung upon him, unless an opportunity were afforded him to explain those opinions, otherwise than by rebutting testimony. The administration of public justice might be seriously impeded. In this case, the party not denying that he has held the opinions attributed to him, now declares that those opinions have been changed, and that, after reading and reflection, he has been convinced of the existence of God, and of a future state of rewards and punishments, *(a)*

The defendants were afterwards convicted.

*546There was also an indictment against the same defendants for “disturbing a religious meetingthe two indictments arising hut of the same transaction, the riot having occurred in a meeting house and during worship. This last case was submitted, subject to the opinion of the court upon the plea of *autrefois convict.*

For the defendants it was contended, that this was the same of-fence with the riot, or was merged in it; and that a conviction would be to punish twice for the same offence. *Const. Art.*1, *Sec.*8; 2 *Hale’s P. C.*251, *ch.*32; 2 *Hawk. Tit. Bar;*4 *Coke’s Rep.*43, *Hudson’s*case; 4 *Blac. Com.*335.

*Rogers,*deputy attorney general, contra, contended that two distinct and substantive offences might grow out of the same state of facts, and be punished accordingly. *Archb. C. P. 2; 2 Russ, on Crimes,*43; 2 *Hawk. P. C.*527, *sec.*5.

*Per Curiam.*

J. M. Clayton, *Chief*Justice:—

The plea of autrefois acquit is founded on the principle that no man shall be placed *in peril*of legal penalties more than once upon the same accusation. 4 *Co. Rep.*40, *43; Hawk. b. 2, c.*26, *s.*63, 35, *s.*1; 4 *Bl. C.*The plea of autrefois convict depends on the same principle, that no man shall be put in *peril*of punishment more than once for the same offence. This is the spirit of the law and has been since magna charta. It is also the spirit of the constitution of Delaware. It is the dictate of justice as well as of humanity.

To plead autrefois convict with effect, the crime must be *the same*in fact for which the defendant was before convicted, *or must be necessarily included in*the former. A conviction on an indictment for a battery is a good bar to an indictment for the assault. A conviction for a riot is a bar to an indictment for the rout, and also for the unlawful assembly, which every riot necessarily includes. In all cases where a former conviction includes another offence the rule applies. *547A *conviction*of murder is a bar to an indictment for the manslaughter; a conviction of petit treason will bar an indictment for the murder of the same person.

These pleas of autrefois convict and autrefois acquit are of a mixed nature, and consist partly of matter of record, and partly of matter of fact. The matter of record is the former indictment, and the conviction or acquittal; *the matter of fact is the averment of the identity of the offence and person.*(1 *Hale,*255, 392.) It is settled, that the matter that the offence in the last indictment was included in a former conviction may be averred and proved by parol. “Anciently, says Hawkins, *(Book*2,370, *c.*35, *s.*4,) the judges often satisfied themselves of the truth of an averment that the offences in both indictments were the same, by witnesses, or by an inquest of office, without (even) putting it to a trial by jury upon an issue joined,” &c. 1 *Johnson’s Reports,*65.

If we *may,*on this conviction for a riot, punish these defendants for wilfully disturbing the religious meeting at which the riot occurred, then they cannot be convicted of the latter offence; for they are not only entitled to exemption from being twice punished for the last offence, but from even being put twice in'peril of punishment.

Now we not only *may,*but we in duty *must*punish on the first conviction for the whole offence. We must consider all the circumstances in making up our judgment. The law rests upon our discretion, and that must be exercised so as to view all the disturbance, alarm and confusion in the religious meeting, caused by their conduct. We cannot overlook the place where, and the occasion on which, this riot occurred, in fixing the punishment for it. We cannot punish it as if it were a mere tavern brawl, or an uproar in the streets. It was a fact of extreme aggravation in the case that it broke up, in the most tumultuous and outrageous manner, an assemblage of religious people, quietly gathered together for the worship of God, according to their own conscience; and violated the constitutional right of every one of them to the free exercise of religious worship without molestation. Tne act of assembly which enacts the punishment for this riot, directs a fine “ not less than twenty dollars, nor more than two hundred dollars, and imprisonment in the discretion of the court, for a term not exceeding six months, *if the court shall deem,*the circumstances *to require such additional punishment.”*

Can it be said, then, that this second indictment does not put the defendants *in peril*of legal penalties already incurred by the first conviction? For upon that conviction the law makes it the duty of the court to mete out the punishment according to the *circumstances ;**548which circumstances are the groundwork and essence of this indict» ment for disturbing the religious worship.

*Booth*and *Wm. H. Rogers,*deputy att. gen., for the prosecution.

*Wales*and *J. A. Bayard,*for the defence.

The defendants were accordingly acquitted on this indictment.

(a)

**1 *Phil. Ev.*19, *note a,*the same point has been decided in the Supreme Court of Connecticut. In *Curtis*vs. *Strong,*4 *Day's Rep.*51; *S. C. Swift's Ev.*48, it was made a question, whether the incompetency of a witness could be proved from his .declarations out of court concerning his opinions and principles : the question was decided in the affirmative; and it was also decided that the witness could not be admitted to deny or explain in court, the declarations imputed to him.

(a)

.) In *Jackson*vs. *Gridley,*Ch. Jus. Spencer approved of *Curtis*vs. *Strong.*He said “ it being proved by other and competent witnesses that the witness offered had deliberately acknowledged himself to be an infidel, and disbelieved in a future state of rewards and punishments, the incompetency of the witness is established by proof. The declarations of the witness, not under oath, do not disprove these facts ; for no fact in a court of justice, can be established ; or, when established, can be destroyed, but by evid nee ; and nothing can be evidence, unless delivered under the sanction *546of an oath.” In *People*vs. *Matteson,*judge Walworth questions this decision only so far as it requires a witness to believe in a state of rewards and punishments in the *world to come.*He held a witness competent who believed in the existence of a God who would punish perjury either *here*or hereafter ; but he concurred with chief justice Spencer, that a man could not be a competent witness who “believed in no punishment by an over-ruling Providence in this life, and (who) believed that at death he would perish with the brutes.” In this case, no question arose of the right of a witness to qualify himself by a simple declaration of faith made at the trial, after he had been disqualified by evidence; and the case, therefore, does not conflict with Jackson and Gridley, and Curtis and Strong, on either of the points considered in Townsend’s case.