, 1888-03-24
1T IS ADMITTED.
Trumble's Testimony Will Not Be
Withdrawn.
He is an incompetent Witness But
Counsel at Fault.
Judge Maginnis Rules that 0bjeC-
tion Was UntimeIy.
Brief Synopsis of a Very Import
ant Decision.

The court room was crowded to its
utmost capacity yesterday afternoon when
Judge Maginnis delivered his decision
overriding the motion of the defense to
strike out the testimony of Charles v.
Tumble from the record. The motion
had been argued at length by Attorneys
Patterson and Campbell the previous
evening. 1t was offered on the ground
that Tumble, being a convicted felon,
was infamous, hence an incompetent wit
ness in any action. His honor quite
agreed with counsel on this proposition,
Notwithstanding the able argument of
the attorney for the people to the con-
trary.
Under the common law and according
to the most liberal construction conceiva.
BILE of the Wyoming statutes, Trumble
cannot at present testify at bar. The
fact that the sentence of death has been
suspended does not affect his competency.
The mans rights of citizenship can only
be restored by the executive, courts hav-
ing no jurisdiction in the premises. This
had been so held in New York and infer
entially ruled in the appealed case of
Carter VS.. the Territory, now pending in
the Wyoming Supreme Court. While it
was the tendency of legislation OF the age
to admit all testimony which would throw
any light on a crime, the evidence of a
convicted felon was clearly incompetent.
The intamy and incompetency of Trum-
Bile as a witness being settled adversely to
the territory, the important and conclu-
sive question of the manner and time of
Directing to obnoxious testimony was
taken up and dwelt upon at length by his
honor.
The defense / i held that it was their
privilege to demur against the admittance
OF Trumble's evidence at any time, and
had plead Ignorance of the statutes as an
excuse for not Directing upon the appear
ance Of the witness, Counsel for the ter
ritOry had naturally commended that the
right to object had expired when the tes-
timOny of Trumble became a portion of
the record.
The court was constrained to coincide
with attorneys for the prosecution, and
on this ground alone the evidence of
Tumble would be accepted by the jury
and remain of record.
Judge Maginnis stated that the incon
potency of Trumble was not an absolute
right of the defendant. 1t was not of
the same character as the constitutional
right to trial by jury. Counsel was well
aware that the disqualification was an
artificial rule and not an axiom of right.
The assumption that a convicted felon
was an Incredible deponent was based on
the theory hat an offender against the
law was not worthy of belief. Many
states had removed the disability of a
telon. England had qualified by restored
capital criminals to this right.A Trumblc's
own testimony or admission was not sufi-
Gent to make him infamous. The wit
had frankly acknowledged his incompe-
tency, but the unsupported confession on
this point could not be legally enter
tanned. The entire question of the time
illness of the objection must be treated
from a strictly statutory standpoint.
Is it within the province of defendant
to waive objection in this instance, was a
leading interrogatory. Has he waived,
naturally followed. Both questions must
be answered in the affirmative. Green
lief, a standard authority on evidence,
held that an objection should be made
prior to the examination in chief, at all
events as soon thereafter as possible, and
was not tenable. at the conclusion of the
taking of testimony. Wharton endorsed
Greenliets views on this subject.
His honor secuted at the plea of igno-
rance entered by defense. The prisoner
had lain In Jail with Tumble for six
months. Junior counsel for Patterson
had continuously attended court, and had
acted as attorney for a person charged
with implicitly in the witness crime. 1t
had been urged in open court that coun-
sci was not acquainted with the statute
governing the point at issue. Ignorance
was inexcusable, and could not appeal to
the court for favor.
In conclusion, while conceding % the
accused every right attendant upon a fair
and impartial trial, the failure of his
counsel to sue for the elimination of i'm
proper testimony at the proper time could
not now be remedied. The motion to