Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1898-07-21


yised Statutes Of the United States is but
a mistlemeanor and 1t does not destroy
the competency Of the person convicted
thereof us Il witness.
"By the common law q conviction and
judgment for treason, felony or one of
the species OF crimen falsi wero good
cause OF exception against witness
while they continue in force, and the
test was whether the nun stood in tho
pillory or suffered other Infamous pun.
ishment.
but this rule was gradually relaxed,
and even in the last century it was taken
as settled law that it was the infamy of
the crime and not the punishmenN which
disqualified from being q witness.
"And the infamous crimes at that time
which it seems would operate as dis.
qualification to testify, appear to have|
been limited to those adjudged guilty of
Of treason, felony, forgery aud crimes 10 \
juriously affecting By falsehood and fraud
the administration of justice. such as,
perjury, subordination of perjury, sup-l
preston of testimony by bribery, con
spring to accuse one OF crime or to pro-,
cure the absence of witness, and not toI
have been extended to cases of private
cheats.
Lac decision Of the United States Su.
preme Court, declaring that a violation OIL
Section of 5440, Revised Statutes, is in.
famous, refers 10 the right of the accused
TO be tried OH an Indictment on account
OF the infamy OF the punishment, aud
does not mean or say that the crime Is inI
Itself Infamous, so that one punished forI
q violation OF il would thereafter DO held
| incompetent rs witness.
| ga n infampna nh al n, mi Joaa mot do
stroy competency as witness, unless The
crime be itself infamous.
| "The distinction must be kept in mind
between infamous crimes meaning thoss
involving disgrace because Of the mature
| OF the punishment and infamous crimes
involving moral degeneracy because Ill
tho nature of the act The former are1
TO be viewed with regard 10 the rights Of
the prisoner in having certain course d
trial; the latter with regard to the disa,
bility as a witness attending the copvicI
ton as the result OF his act. In the LATED
the act committed is to be looked at en-
tircly, and In the former the punishment
Again, even though 1t might be held
that this statutory crime was infamous
yet 1t does not destroy competency as
witness, as every presumption Is in favOi&
OF competency and there has been con
tinual and ever,increasing relaxation a
the common law rule as to incompetence
both by statutes and by judicial legisll
ton. So that to-day In England and 4
nearly every State In this country theH<
is no incompetency on account of convV
tion of any Infamous crime. That ID
Federal Legislature recognized this mod
ern rule appears from the provisions
Section 1892 and Section 5393 of the ReV
vised Statutes, wherein incompetency q
testify is made specific part of the pun
ishment for perjury and subornation
perjury, and for these crimes alone,
all offences prescribed in the chapter o.
crimes, is such punishment inflicted. Al
plying the rule Of statutory construction
that no word in statute shall be bel
superhuous or unnecessary, IL must fol
low that the Federal Congress did nd
consider that incompetency attachd
under the modern rule even To periur
Furthermore, by the insertion speciflca
OF this penalty there was an evident
lief on the part of tho Congress that sud
penalty did not attach To the other Grim
on the schedule. The Implication In n
gard TO Section $40 is even stronee
from the fact that the Legislature a
subsequent date amended IL and did 81
OF that time attach any such terrible perl
atty as part OF the punishment for d vio'
lation of Its provisions"
District Attorney Vandegrift, in lid
brief, coGtended that the Circuit Cou
has no jurisdiction 10 issue a writ
babeas corpus for the production of pc
son convicted and sentenced by the ID
trct Court, and also has no jurisdictid
to issue a writ that may be effective
yond the territorial limits of the distrii
that Cooper if produced as O witrc}
would be incompetent because he Ii II
been sentenced for an infamous crime. n
e. r. COOPER TO BE BROUGHT HERFl<
IA soon as court opened Judge Brad
fora gave his decision on the npplicdy
tion for writ Of habeas corpus Y
have Il. L. Cooper brought from Tre,&
ton lail to testify, in which he grant
the application.
The judge. 10 giving his decisiu
said he had carefully and diligenl
considered the application. This d
plication, he explained, present two
purtant questions The fret ia as
! the competency or inoompetency Of
Il. Cooper to testify, anu the secoi y
! assuming that he ia a competent Wit
ness, whether this Circuit Court of Dr.
District Of Delaware has authority q
issue a writ directing the keeper Of
prison at Trenton TO produce the BOD
of E. Il. Cooper 10 this court.
Aside from the question as TO
Importance or uniniportance Of any u
timony Cooper might give" thu jud
SAID, Il have considered to the exts
OF his ability and to his personal d
comfort, those two questions Of law.
In some respects" he continue
this application 10 remarkable, 10 tt
neither the counsel for the aefenda
nor the counsel for tho government ha
produced single caae on either poll
and after tho moBt diliQent research
have been unable TO find amy case VIII
is in point in either case. Looking N
tho mattor on general principles and
view of certain provisions in tho U0
stitution and Statutes of the Unit
States, bave some doubt as TO whsth
II. Il. Cooper ia not competent. On y
other question / have greater doubt
the authority Of this court to award
writ. have oome to .the conoluso
however, IA there is doubt 10
mind of this court, that il shall be
favor OF the defendant aud the vi
shall issue as prayed for.
!" at tho same time" be contDud
should like the counsel IN this
other cases TO understand that this u
, shall not establish a precedent.
/ SENATOR KENSEy MAKES \ oui,nEcTd
! Senator Kenney was allowed TO "a
the stand and make correction in x
! timouy he had given last Friday.
said Mt that time no had stated u
the proceeds received by W. N. Bol
from the sale of stock of the Baltiml