Fidelity-Phenix Fire Ins. Co. of New York v. Murphy , 231 Ala. 680 ( 1936 )

Is a person convicted of perjury or subornation of perjury in the District Court of the United States sitting in Alabama a competent witness in the courts of Alabama?

Prior to 1883 the common law touching the competency of witnesses convicted of crime prevailed in this state. Under such common law all persons convicted of crime of the class broadly designated as crimen falsi were rendered incompetent to testify in a court of justice. Moore v. State, 12 Ala. App. 243,67 So. 789.

In Sylvester v. State, 71 Ala. 17, 23, the rule was applied to a witness convicted of petit larceny by a justice of the peace.

At the next session of the Legislature, 1883, our present statute was enacted. It reads: "7722. (4008) (1795) (2766)Competency of witness as affected by conviction for crime. — No objection must be allowed to the competency of a witness because of his conviction for any crime, except perjury or subornation of perjury; but if he has been convicted of a crime involving moral turpitude, the objection goes to his credibility."

Manifestly, this statute was not one imposing disqualifications not then existent, but one removing former disqualifications, providing that conviction of crime involving moral turpitude should go to the credibility, not the competency, of the witness, but expressly excepting convictions for perjury or subornation of perjury.

The reason for the exception, leaving the common law in force as to perjurers, is not far to seek. The crime of perjury strikes at the foundation of the administration of justice in the courts. It pollutes the temple of justice. It not only tends to defeat justice in the particular case, but to convert the tribunal of justice into a forum of oppression and wrong, with all the loss of respect and confidence which such results entail. It is expressive of a public policy, viz., that one who has willfully sworn falsely to material facts should not again be put on the witness stand. Not that he may not tell the truth, but that he is too untrustworthy to take the risk.

The solemn adjudication of that fact, with all the safeguards surrounding a defendant on trial for crime under our institutions, is accorded full verity on the question of competency. Is such verity to be accorded only to convictions in the state court, or is the statute to be so construed as to accord the same verity to a conviction of perjury in a federal court in Alabama?

The statute is silent on the subject, and is to be construed to accomplish the ends for which such exception was retained.

We have another statute (Code 1923, § 6256, subd. 1) declaring an attorney at law must be removed, deprived of the right to follow his profession, "1. Upon his being convicted of a felony other than manslaughter, or of a misdemeanor involving moral turpitude; in either of which cases the record of his conviction is conclusive evidence." This statute is also silent as to the court or jurisdiction in which he is convicted. In State ex rel. Sanford, Solicitor, v. Riddle, 213 Ala. 430,105 So. 259, 262, on consideration by the full court, it was held to include conviction for an offense under federal law in a federal court in Alabama. Among the announcements in the well-reasoned opinion, written by Mr. Justice Somerville, are these: "The federal courts in Alabama are not foreign courts. They are an integral part of the judicial structure of the state, less important to the people than state courts, because more limited in their field of operation, but of equal honor and dignity. Their juries are drawn from the same citizenry, and their rules of evidence and procedure for the most part follow those of the state."

The decision discloses a full consideration of authorities elsewhere holding convictions for crime in one state not evidence of incompetency of a witness in another state. Commenting on such cases, it is said: "The analogy fails because the principle invoked involves convictions in otherstates, and not in federal courts of the same state. It is to be noted, also, that the reason given for the rule is that the disqualification of a witness is in the nature of a penalty, and penalties of that sort can have no exterritorial operation. That reasoning is, we think, faulty, and loses sight of the main purpose of the disqualification, the protection of litigants or defendants against probably perjured testimony. Taylor v. State, 62 Ala. 164. Four courts seem to have held to the contrary. Chase v. Blodgett, 10 N.H. 22, 24; State v. Foley, 15 Nev. 64, 37 Am.Rep. 458; State v. Candler,10 N.C. 393; Day v. Lusk (Mo.Sup.) 219 S.W. 597."

Further on in the opinion it is expressly announced that no decision is intended as to convictions in other states. This simply emphasizes that the federal courts in Alabama are not to be classed as foreign courts.

Emphasis throughout is laid on the purpose of the statute, disbarment of one convicted of crime as a protection to the public, especially in preserving confidence in and respect for courts of justice in view of the relation of attorneys thereto.

Again in Louisville N. R. Co. v. Tally, 203 Ala. 370, 373,83 So. 114, 117, it is said: "It is true the judgment in question was rendered by the federal court, but it is a court of this state, and to every intent and purpose its judgment is what is termed a 'domestic judgment' and should be accorded the same verity as one rendered by the courts of general jurisdiction of this state. Black on Judgments, § 285; Pearce v. Winter Iron-Works, 32 Ala. 68; Riverdale Cotton Mills v. Alabama G. Mfg. Co., 198 U.S. 188, 25 S.Ct. 629,49 L.Ed. 1008; 15 R.C.L. § 364, p. 886; Reed v. Vaughan, 15 Mo. 137, 55 Am.Dec. 133, and note. See, also, note 32 Am.St.Rep. 213."

True, that case did not involve the direct question here presented, but did involve the presumption of verity accorded the judgments of such courts.

The federal laws administered in the federal courts are laws governing the citizens of Alabama just the same as the laws of state origin. Moreover, the federal courts daily adjudicate the rights of parties under state laws, just as the state courts constantly adjudicate the rights of litigants under federal law.

While state and federal courts are created by and derive their jurisdiction from different sovereignties, each having its own autonomy in our federal system, ours is one government, one system of laws, all affecting and governing the lives and transactions of each and every citizen.

Perjury triable in the federal court is the same character of crime triable in the state court.

All the safeguards, indictment by a grand jury, trial by jury, a unanimous verdict, proof beyond a reasonable doubt, benefit of counsel, compulsory process for witnesses, are common to both jurisdictions. The defendant may become a witness in his own behalf in the federal as well as the state court. 28 U.S.C.A. § 632.

Another consideration which we deem of importance is that by express statute the rules as to competency of witnesses under the state laws govern in civil causes in the federal courts.28 U.S.C.A. § 631 and notes; 25 C.J. p. 816; 70 C.J. p. 113.

What follows? If a witness appears in the federal court in a civil action such as this, objection to his competency because convicted of perjury in the state court would be good. Another witness appears and objection to his competency is made on the ground that he was convicted of perjury in that court, the very court where he comes to testify; shall the court say go ahead, you were only convicted of perjury in this court, not in a state court? To carry the illustration further, if one party to the suit has been convicted of perjury in the state court, his mouth is closed as a witness on objection of the other party. Then the other party appears as a witness. He has been convicted of perjury in the federal court trying his case, but nevertheless he is a competent witness, if we accept the view of appellee in this case.

Legislative acts should not be construed to work such results unless clearly so intended.

We are not unmindful that the weight of authority, cases and text-writers, is opposed to the views we have expressed.

Mr. Wigmore in an elaborate discussion (volume 1, §§ 519 to 524) deals with the severity of the common-law rules of incompetency for the commission of crime, quoting from Jeremy Bentham, the decisions of the several states; the general tenor of his views being that no limitation on the competency of witnesses for conviction of crime should be retained. Section 524.

Mr. Jones, vol. 5, §§ 2096 to 2098, treats the subject quite fully, announcing (section 2098) that by the weight of authority United States courts and state courts are considered foreign courts.

Very few cases have arisen in which the exact question here presented was involved. See Brown v. United States (C.C.A.) 233 F. 353, L.R.A. 1917A, 1133, and note p. 1138; 70 C.J. pp. 110 to 113.

The reasoning of those cases, treating federal and state courts of the same state as foreign, etc., has been departed from in our decisions.

The law may be considered in a formative state on the question immediately before us. We consider our cases state the better reason, and that a witness convicted of perjury in a federal court in Alabama is rendered incompetent in the courts of Alabama.

In this cause, however, we are impelled to hold there was no judgment of conviction with the usual incidents to a conviction for perjury on a plea of guilty or not guilty.

The record shows the judgment entered on a plea of nolo contendere. This is a special and limited plea recognized in some jurisdictions. It may not be filed as matter of right, but only allowable upon acceptance of the court. When so accepted, it has the effect of a compromise agreement between the state and the accused to the effect that a judgment of conviction be entered, but only for the purposes of the particular case, not to become evidence against the accused in any other proceeding. Such a plea, therefore, enters into and limits the judgment of conviction rendered thereon. The sovereign having entered into such covenant with defendant, evidenced by acceptance of such plea, good faith demands that the judgment be given no more effect than thus stipulated. 16 C.J. p. 404, and notes.

THOMAS, BROWN, and KNIGHT, JJ., concur in the foregoing.