, 1875-06-10
Opinion Of Judge Lewis on In
dian Testimony

The Pc Petitioners were comritted by
Justice Of the Peace, in default of bail
in the sum of one thousand dollars each,
charged with murder in the second de-
gree.
The only evidence against them be-
fore the committing magistrate was CIV
Ell by witnesses who sre Indians, and
Petitioners claim that Indians are not
comuetent Witnesses in crimir al prose-
cutions, wherein white man is defend
ant.
Counsel for petitioners has most
earnestly and candidly argued tho point.
and have given it careful considera-
ton. In support of his views he
cites secs. 139 aud 231 of the criminal
practice act of 1878.
1t is provided by section 231 that
Witnesses competent to testify in cir'l
cases shall be competent in criminal
,,rosecutions. That Indians
shall be competent witnesses as herein
efore provided, or in any prosecutions
which an Indian may be defendant
-Cn1M1sAL CODE or 1878. SEC. 231.
By the provisions of Sec. 139 of the
criminal code of 1873, it is provided
that in prosecutions for selling liquors
to Indians an Indian is competent wit
ness.
These sections-159 and 231--corres>
pond with and are identical with Sec
tions 1873 and 226 of the criminal code
OF 1869.
In order therefore, to determine who
are competent ia criminal cases, we
must necess arily ascertain who are COM
petent in civil cases, for tits declared that
those who are competent in civil cases
are competent in criminal prosecutions
Referring then to section 3S1 Of the
civil practice act of 1873, it is declared
hat
EVERY person of sound mind, suit
able age and discretion, except as here
matter provided, may be a witness IN
any action or proceeding" and 1t IS
further enacted by section 3S4 " That
the following persons shall not be coin-
petent to testify, to wit:
l. Those who are of unsound mind
- ,,kax;oofod
2. Children under ten years OF age
For the purposes of this case, these
are the only exceptios nstated IN the
statute.
Counsel insists that inasmuch as by
the latter clause .of Sec. 23l, Or.
Practice act, it is therein declared that
an Indian is competent witness dgalns
an Indian that the maxim " Expressio
unius est e1clusio alterius' is applica-
BILE. and it follows that an Indian ls
not competent in cases wherein white
man is defendant.
10 IuI6 Is LlC1ACAtaly tA0s Al sHS
construction of statute, the intention
of the lawgiver is to be deduced from
view of the whole and Of every part ta-
ken and compared together
and if the words are not explicit,
the intention Is to be collected from the
context, from the occasion and necessi-
tv of the law, from the mischief felt end
the object and remedy in view. l Kent,
462. And it is so said by Lord Coke,
That " construction of statute must
be made, in the suppression OF
the mischief and in advancement of
tie remedie.' Coke upon Littleton.
3S1a.
If we concede that the words OF
the statute are not explicit. and exan :
inc the whole statute in the light of the
above rules, we shall easily reach a sat>
sfactory conclusion.
=, 1t is a part of the fundamental law of
the land as now declared by the Courts
"that all men are equal before the law,
and our law makers have within the
last twenty years made remarkable pro-
g1ess toward enabling the parties to get
the whole of the facts in a cause to the
Jury, leaving the jury, who are the sole
Judges of the facts, to weigh the evi-
dence.
Hence, the old rule, that party in
interest is excluded from testifying, has
been swept away, and the modern ten
dency of Legislation is to permit every
person to testify, leaving to the jury to
determine as to the credibility of the
witnesses.
This spirit of reform years ago
reached the Halls of our Legislature.
An examination of the Statute of 1868.
page 155, section $50, discloses, that at
that time, in addition to the two e1cep-
tions above referred to in section 1884,
Code 1873. it was declared that
Indians, Negroes and Chinamen Should
not be competent to testify.
1t had not then nor in 1869 beer dis
covered that "all men are equal before
tie law"
The Legislature of 1869. however,
made much progress, and the exceptions
O. a.toNegroes andC Cinnamon were stricken
out. Code of 1869, section 1856, our
law makers at that time were still un-
willing to believe that jurors were
competent to weigh the testimony Of an
indian.
The Congress Of the United States in
1870 by law declared, that all persons
within the the jurisdiction of the United
States shall have the same right in every
State and Territory to gire evidence, and
10 the full anu equal benefit of all laws
for the security Of persons,as is enjoyed
by white citizens. Revised Status,