Bayard’s Notebook, 30
Court of Quarter Sessions of Delaware.
December, 1793.
Jacob Miller, a free Negro, was offered as a witness for the State, to whose competency Clark and Vandyke, counsel for the defendants, objected upon two grounds: first, that an infamous judgment had been passed upon him; second, that he was an accomplice.
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In order to support the first objection, they produced a record of the conviction of the witness before a justice of the peace of dealing with a negro slave and sentencing him to receive fifteen lashes. They contended that an infamous punishment rendered a witness incompetent and cited the following authorities: Gilb.Evid. 143, 2 Hawk.P.C. 419, s. 19, Lofft’s Gilb.Evid. 256. In support of second point was cited Gilb.Evid. 139, 1 Atk. 452.
Ridgely, Attorney General, and Bayard for the State contended: First, that it was the crime and not the punishment which rendered a witness incompetent. There are instances where the punishment is at the election of the party. As if a man be convicted of fornication, he may pay three pounds or be whipped. In such a case, the having or not having three pounds would constitute the infamy. 2 Wils. 18 is in point. The crime committed by this witness is clearly not infamous, and the act might possibly have been morally innocent. Second, there is no doubt an accomplice is a good witness, 2 Hawk.P.C. 432, s. 18, Leach 159. An accomplice becoming a witness is not exempt from punishment, Leach 126.
BASSETT, C. J.
Two objections are made to the admission of this witness: first, that he has been convicted of an offense and sentenced to receive a punishment which renders him incompetent; second, that he is an accomplice. These objections go to the credibility and not to the competency. The record shows a conviction of having dealt with a negro slave. This offense is not infamous, though its punishment is so. The justice by whom the conviction was made could take cognizance only of the offense of dealing, etc., though he should state in the record that the goods were stolen by the slave, yet this would make no part of the conviction and therefore [would be] irrelevant. Many crimes not infamous are infamously punished, as fornication, etc. But it is not the punishment, but the crime, which constitutes the infamy which would render it dangerous to admit men as witnesses, and which therefore renders them incompetent. There is no ground for the second objection. Crimes are generally secretly committed and accomplices are often the only witnesses of them. It is the policy of the law to turn these people against each other and to make them the instruments of justice.
McDONOUGH and RODNEY, JJ., concurring,
witness sworn.
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