Commonwealth v. Gorham

The defendant in this ease offered himself as a witness, and the rules of evidence affecting the competency or credibility of witnesses were all applicable to him in that character. Commonwealth v. Bonner 97 Mass. 587.

It was the rule of the common raw that the production of the *422complete record, including the conviction, technically so called, and the final judgment thereon, was necessary in order to show that a witness offered was incompetent on account of infamy. This rule is founded on the reason that it is always within the power of the court, on motion in arrest or for a new trial, to set aside a verdict illegally or improperly rendered, at any time before judgment; and the prosecution may in the end result in the defendant’s acquittal.

Under the Gen. Sts. c. 131, § 13, no person can now be excluded by reason of crime from giving evidence as a witness, but the conviction of any crime may be shown to affect the credibility of the witness. The term “ conviction ” is used in at least two different senses in our statutes. In its most common use it signifies the finding of the jury that the prisoner is guilty; but it is very frequently used as implying a judgment and sentence of the court upon a verdict or confession of guilt. Gen. Sts. c. 160, § 8; c. 173, § 1. In c. 174, the several sections relating to judgment and execution in criminal cases plainly describe the situation of the prisoner when nothing remains but the sentence. And in the several chapters which define and punish offences against persons, property, public morality and health, the words “conviction” and “convicted” describe the same condition of the offender. We think the obvious purpose of the legislature was to restore the competency of a witness against whom the record of a judgment for crime was produced, bnt to permit the same evidence to be used as affecting his credibility, (in all cases requiring the same complete record of the whole case,) and that the word “ conviction ” is here used in the broader and less technical sense, and implies the judgment of the court. It could not have been the purpose of the lawmakers to permit evidence of moral guilt, as distinguished from guilt , egally established, to be produced against the witness. If this were so, then the finding of an indictment by the grand jury, which was afterwards quashed, or upon which a nolle prosequi was entered, might with equal propriety be permitted to ba shown. Exceptions sustained.