tion, 18 or because the jury could not agree after repeated instructions,1o is not sufficient to sustain a plea of former jeopardy. So, also, it is a general rule well sustained by the cases that a judgment in criminal and in civil cases in order to be conclusive as a bar on the parties in a subsequent proceeding, must have been rendered by a court having proper jurisdiction and whose proceedings were wholly regular.20 If the indictment on a former trial was bad, so that a conviction thereon would be set aside because of the insufficiency of the indictment, a plea of former acquittal or conviction is not sustained.21 Usually the record is proper evidence to prove that the court had jurisdiction and in the absence of proof of its loss or destruction, its production to prove jurisdiction may be required as the best evidence of that fact.22 § 197. Identity of crime and person.-The accused must show by evidence independently of the record the identity of the crime for which he was convicted or acquitted with that for which he is now on trial as regards time,23 place and character.2 24 18 State v. McKinney, 76 Kan. 419, Va. 718, 20 S. E. 821, 822; State v. 91 Pac. 1068. Sommers, 60 Minn. 90; 61 N. W. 907. Underhill on Ev., § 152. 19 Johnson v. State, 54 Fla. 45, 44 So. 760; Keerl v. State, 213 U. S. 135, 53 L. ed., 29 Sup. Ct. 469, aff'g State v. Keerl, 33 Mont. 501, 85 Pac. 862. 20 "McNeil v. State, 29 Tex. App. 48, 14 S. W. 393; Blyew v. Commonwealth, 91 Ky. 200, 15 S. W. 356, 12 Ky. L. 742; Alford v. State, 25 Fla. 852, 6 So. 857; Smith v. State, 67 Miss. 116, 7 So. 208; State v. Phillips, 104 N. Car. 786, 10 S. E. 463; People v. Hamberg, 84 Cal. 468, 24 Pac. 298; State v. Hodgkins, 42 N. H. 474, 477; State v. Odell, 4 Black f. (Ind.) 156; Commonwealth v. Peters, 12 Met. (Mass.) 387; Commonwealth v. Bosworth, 113 Mass. 200, 202, 18 Am. 467; Brown v. State, 105 Ala. 117, 16 So. 929; People v. Connor, 142 N. Y. 130, 133, 36 N. E. 807; Dulin v. Lillard (Dulin's Case), 91 21 Timon v. State, 34 Tex. Cr. App. 363, 30 S. W. 808, 1063; State v. Littschke, 27 Ore. 189, 40 Pac. 167; United States v. Barber, 21 D. C. 456; Shepler v. State, 114 Ind. 194, 198, 16 N. E. 521; Ford v. State, 7 Ind. App. 567, 570, 35 N. E. 34. 22 State v. Salge, 2 Nev. 321; State v. Spencer, 10 Humph. (Tenn.) 431, 432; Brill v. State, I Tex. App. 152. 23 People v. Gault, 104 Mich. 575, 62 N. W. 724; Reed v. State (Tex. 1895), 29 S. W. 1085; Bickham v. State, 51 Tex. Cr. App. 150, 101 S. W. 210. 24 Wilkinson v. State, 59 Ind. 416, 26 Am. 84; Nagel v. People, 229 Ill. 598, 82 N. E. 315; Brown v. State, 72 Miss. 95, 16 So. 202; Henry, In re, (Idaho) 99 Pac. 1054; State v. Hudkins, 35 W. Va. 247, 13 S. E. 367; The identity of the person who stands accused with the person formerly acquitted or convicted must also be shown, and may be proved by parol evidence, though identity of name may usually be sufficient proof of identity of person in the absence of evidence to the contrary.25 The burden of proof to show the fact of the former acquittal or conviction and also to show the identity of the person and of the crime is always upon the accused. 20 26 Whether the proof of former acquittal or conviction is sufficient is a question for the court to determine upon all the facts and usually, unless it is evident that gross injustice has been done, the determination of the court will not be reviewed.2 27 If the accused offers no proof to sustain a plea of former acquittal or conviction, it is the duty of the court to direct the jury to find for the prosecution.28 Parol evidence from a judge, juror or witness at the former trial is admissible to show the identity both of the person and of the crime. 29 Durland v. United States, 161 U. S. 306, 40 L. ed. 709, 16 Sup. Ct. 508; Inman v. State, 35 Tex. Cr. App. 36, 30 S. W. 219; State v. Chinault, 55 Kan. 326, 40 Pac. 662; State v. Robinson, 116 N. Car. 1046, 21 S. E. 701; Reddy v. Commonwealth, 97 Ky. 784, 31 S. W. 730, 17 Ky. L. 536; State v. Waterman, 87 Iowa 255, 54 N. W. 359; State v. Wister, 62 Mo. 592; Burk v. State, 81 Ind. 128; King v. State, 43 Tex. 351; State v. Atkinson, 9 Humph. (Tenn.) 677; Davidson v. State, 99 Ind. 366, 367; Foster v. State, 39 Ala. 229, 234; Vowells v. Commonwealth, 83 Ky. 193, 7 Ky. L. 176; Sims v. State, 21 Tex. App. 649, I S. W. 465; Faulk v. State, 52 Ala. 415, 417; Jenkins v. State, 78 Ind. 133, 134; Beyerline v. State, 147 Ind. 125, 45 N. E. 772. 340; Vowells v. Commonwealth, 83 Ky. 193, 7 Ky. L. 176; Cooper v. State, 47 Ind. 61; Commonwealth v. Wermouth, 174 Mass. 74, 54 N. E. 352; Brown v. State, 72 Miss. 95, 97, 16 So. 202; Commonwealth v. Daley, 4 Gray (Mass.) 209; Commonwealth v. Hoffman, 121 Mass. 369; State v. Ackerman, 64 N. J. L. 99, 45 Atl. 27; People v. Cramer, 5 Fark. Cr. (N. Y.) 171. 27 State v. Bradley, 45 Ark. 31. See Allen v. State, 70 Ark. 22, 65 S. W. 933; Daniels v. State, 78 Ga. 98, 6 Am. St. 2381; People v. Richards, 44 Hun (N. Y.) 278; State v. Bronkol, 5 N. Dak. 507, 67 N. W. 680. 2 Territory V. West (N. Mex. 1909), 99 Pac. 343. § 198. Criminal judgments as admissions.-A judgment in a criminal trial may under some circumstances be admissible in a subsequent civil proceeding. Thus, in an action to recover damages for an assault and battery, the plaintiff may prove that the defendant was arrested and placed on trial for the same, and also that he was tried and found guilty, or that he pleaded guilty and was sentenced. Such a determination, deliberately made, is of the highest value as evidence on the issue in the civil proceeding.3 597; Commonwealth v. Dillane, 11 Gray (Mass.) 67; State v. Waterman, 87 Iowa 255, 257, 54 N. W. 359; State v. Maxwell, 51 Iowa 314, I N. W. 666; Emerson v. State, 43 Ark. 372; Swalley v. People, 116 Ill. 247, 4 N. E. 379; Dunn v. State, 70 Ind. 30 47, 49; Walter v. State, 105 Ind. 589, 593, 5 N. E. 735; State v. McIntyre (Wash. 1909), 101 Fac. 710. Ante, 88 190, 193. 30 Green v. Bedell, 48 N. H. 546, 549. CHAPTER XVII. THE COMPETENCY OF WITNESSES. § 199. Definition and formal require- $206. Incompetency ments of the oath. 200. When witness may affirm. 203. Mode of proving insanity of 204. Deaf mutes as witnesses. of witnesses caused by conviction of infamous crime. 207. The pardon of the convictWhen restoring competency 208. Mode of proving pardonParol evidence. 209. Statutory regulations removing the incompetency of persons convicted of crime. 210. Statutes construed. § 199. Definition and formal requirements of the oath.-An oath has been defined as an "outward pledge given by the juror that his attestation [or promise] is made under an immediate sense of his responsibility to God." The definition just given. it may be noted, wholly omits the imprecatory elements of the oath which were so prominent in the definitions of the common law. It is certainly consistent with the most modern ideas upon the subject, and less calculated to offend persons who may entertain conscientious scruples against invoking God's wrath upon themselves. In criminal courts of inferior jurisdiction, where the issues of fact are determined by the magistrate without the intervention of a jury, the oath is usually administered by the judge himself. In the higher courts this duty is performed by the clerk, the formula employed being usually "you do solemnly swear that you will tell the truth, the whole truth, and nothing but the truth, as a witness in this issue now joined between A. and B." asseveration by which a person renounces the mercy, and imprecates the vengeance of heaven, if he do not speak the truth." 1 Tyler on Oaths, London, p. 15. 21 Stark. Ev., 22. In Rex v. White, 2 Leach Cr. L. 482 (1786), the court thus defines an oath: "A religious The witness expresses his assent to this affirmation by raising his hand only, or by placing it upon a copy of the Bible while the oath is being administered, and by kissing the book at its conclusion.3 But the main requirement is that the witness shall feel that he is bound by the oath, and if he feels that he is bound the formula is immaterial. If the court is informed by the witness or by any other person that the witness is an adherent of a religious system other than Christianity, he must be asked what form of oath he considers most binding on his conscience. If the court is satisfied that there is any peculiar form which the witness regards as more obligatory than that usually employed he should be sworn accordingly." A Chinaman is not incompetent as a witness on account of his inability to explain the nature of the oath which is ordinarily taken by witnesses. Usually he will or may be sworn according to the oath which he states is most binding on his conscience." § 200. When witness may affirm.-The scriptural injunction, "Swear not at all" is considered by many as an express prohibition of oaths of every sort. Such persons on this account decline to participate in or give their assent to any form of words which involves or implies an invocation of God. The wishes and conscientious scruples of all such persons are carefully respected by the law, both common and statutory, and to them a question in the following form is put: "You do solemnly, sincerely and truly declare and affirm that you will state the truth, the whole truth and nothing but the truth, in the issue now joined between the 3 See Underhill on Ev., § 315, and laws, religion and constitution of cases there cited. those countries. But still the substance is the same, which is that God in all of them is called upon as a witness to the truth of what we say." In Omichund v. Barker, Willes, p. 547, the court said: "It is very plain from what I have said that the substance of an oath has nothing to do with Christianity, only that by the Christian religion we are put still under great obligations not to be guilty of perjury. The forms indeed of an oath have been since varied, and have been always different in all countries, according to the different 24-UNDERHILL CRIM. EV. |