Central Law Journal, ST. LOUIS, MO., FEBRUARY 8, 1918. COURT OF WITNESS CONVICTED OF INFAMOUS CRIME IN STATE COURT. ELIGIBILITY IN FEDERAL "". "In the almost twenty years which have elapsed since the decision of the Benson case the disposition of courts and of legislative bodies to remove disabilities from witnesses has continued, as that decision shows it had been going forward before, under dominance of the conviction of our time that the truth is more likely to be arrived at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the credit and weight of such testimony to be determined by the jury or by the court, rather than by rejecting witnesses as incompetent, with the result that this principle has come to be widely, almost universally, accepted in this country and in Great Britain. "Since the decision in the Benson case we have significant evidence of the trend of congressional opinion upon this subject in the removal of the disability of witnesses convicted of perjury (R. S. 5392) by the enactment of the Federal Criminal Code in 1909, with this provision omitted and § 5392 repealed. This is significant, because the disability to testify of persons convicted of perjury survived in some jurisdictions much longer than many of the other common-law disabilities, for the reason that the offense concerns directly the giving of testimony in a court of justice, and conviction of it was accepted as show was thought should be implied from a conviction of other crime. In Rosen v. U. S., 38 Sup. Ct., 148, the U. S. Supreme Court holds that a person who is offered as a witness in a District Court of the United States is not disqualified from testifying because of having been convicted of an infamous crime in a state court of the state in which the District Court is sitting. In 83 Cent. L. J. 311, there was reference to a similar ruling by Sixth Circuit Court of Appeals in the case of Brown v. U. S., 233 Fed. 353, and this position was taken in Spear v. U. S., 144 U. S. 303, where a pardon was held sufficient to remove the supposed disqualification, that otherwise would have resulted. In Boyd v. U. S., 142 U. S. 450, the same ruling was made. Reference also was made to Reid v. U. S., 12 How. 2, and Logan v. U. S., 144 U. S. 263. The latter case helding a greater disregard for the truth than it that disqualification by North Carolina statute would not operate in the trial of case in a district federal court sitting in Texas. No reference, however, was made to Benson v. U. S., 146 U. S. 325. All of these cases are considered in the opinion in the Rosen case, in which there was dissent by Justices Van Devanter and McReynolds under the doctrine of stare decisis in the Reid case, followed in the Logan case. The Supreme Court in the Rosen case said that forty years intervened between the Reid and Benson cases and a little less than thirty years since the Benson case was decided. In the latter case it was held the Reid case was not decisive of that. It was pointed out in the Benson case, that a great change had come over the courts as to competency of witnesses and in the removal of merely technical barriers in the exclusion of witnesses, and now it is said: "Satisfied as we are that the legislation and the very great weight of judicial authority which have developed in support of this modern rule, especially as applied to the competency of witnesses convicted of crime, proceed upon sound principle, we conclude that the dead hand of the common-law rule of 1789 should no longer be applied to such cases as we have here, and that the ruling of the lower courts on this first claim of error should be approved." In our reference to the Reid case in 83 Cent. L. J. 311, we deduced the conclusion that some known and established rule was to govern, from Chief Justice Taney saying that the intention of Congress in not making any specific rule was to this effect, and we said that: "This rule may be thought to refer federal courts to the common law." In the Rosen case, our Supreme Court, therefore, seems to cut loose from ILLEGAL CONSIDERATION-COMPOUND the common law rule in deference to the NOTES OF IMPORTANT DECISIONS. enlarged view of state courts creating what is called the "modern rule." This modern rule takes in witnesses having knowledge of facts, with their credibility to be determined by the jury. While we heartily agree that progress ought to obtain in our courts in exposition of the principles of the common law, yet. it seems to us, that intent, especially as regards courts, with only statutory powers, is equivalent to express direction. If "the dead hand of the common law rule of 1789" was a live hand when the Reid case was decided, the statute with regard to such tribunals, that this dead hand, however it might be forgotten in courts of natural jurisdiction, became petrified in courts of purely conferred jurisdiction. Furthermore, it has seemed to us, that not always have courts possessing general jurisdiction, such as state courts are, been accorded the respect that the Rosen case grants them. Especially does this thought seem pertinent as to many of the lower federal courts. We trust this Rosen case will carry its lesson to our inferior federal courts, and cause them to accord increase of influence to state courts. If they can cause a change of ruling in our highest tribunal, they ought to be accorded more finality in questions involving common law ruling than has been granted. It is as much a grant of power to confer on statutory federal courts procedure under common law rules as it is to prescribe specifically the manner in which they shall exercise their powers. If, as Chief Justice Taney ruled in the Reid case, the common law rule as to competency was meant, this was to continue until statute should supersede that rule. The fact, that it did continue down to 1895, ought to give some assurance that the legislative power has acquiesced in construction by the courts of the power vested in courts organized under congressional statute. ING FELONY NOT CONCLUSIVE OF RIGHT TO RECOVER MONEY PAID.-In Bertsching. er v. Campbell, 168 Pac. 977, decided by Wash ington Supreme Court, the facts show that one physician played upon the fears of another phy sician to extort money from him in an alleged abortion case. In an action to recover the money extorted by the former from the latter, the trial court held that the evidence showed conclusively that the payment was voluntary and this precluded recovery. Motion for non suit being sustained on this theory, the Supreme Court reversed and remanded the cause. After much discussion in which a state statute is cited making it a felony amounting to robbery for anyone to extort or gain money or property by accusing another of crime, the court said: "It was suggested in oral argument, though not advanced in the briefs as a defense, that the payment of this money, under the circumstances as shown by appellant's evidence, was in effect, the compounding of a felony, and for that reason the judgment of dismissal was not erroneous. This, upon the theory that the agreement was so tainted with wrong and illegality that the courts will not lend their aid to the enforcement of the right claimed by ap pellant. It hardly seems likely that respond ent would, upon a new trial, care to invoke this defense, since it would imply that he was himself equally guilty of compounding the crime with which he charged appellant. That would seem to be an admission on his part that the money was received as well as paid, for that purpose. But even that theory would still leave open the question of appellant having paid the money under duress. Plainly a contract or settlement amounting to the compounding of a crime could be void because of duress as well as unenforceable because of being against public policy. If void because of duress it was not a binding contract or settlement under which appellant could retain the fruits thereof, even though it was also a contract which, but for the duress, would have been against public policy and as such could not be the foundation of any right to be asserted in the courts. The trial judge did not take the case from the jury upon this ground, but solely because he decided as a question of law there was not such duress as entitled appellant to recover the money paid. This is rendered plain by remarks of the judge made in announcing his decision and preserved in this record. Clearly, it would have been erroneous for the trial court to have dismissed the action upon the ground that the payment of the money was for the compounding of a felony in view of the evidence produced in appellant's behalf." In 86 Cent. L. J. 61, there was discussed the principle of "Recovery by Plaintiff Notwithstanding Participation in Fraud." There we dissented from the ruling of South Dakota Court sustaining the action upon the theory that the transaction infringed public policy, this was not aided by the ruling of South Dakota Supreme Court. With the Washington Supreme Court we heartily agree, not only because of the Washington statute, but also because proof of duress was evident, the trial court to the contrary notwithstanding. LANDLORD AND TENANT-EVICTION BECAUSE OF UNGENTLEMANLY CONDUCT OF OTHER TENANT OF FLAT BUILDING.Whether landlord and tenant relations may be affected by conduct of tenants in a building for flats or an apartment, where the form of lease to all tenants calls for gentlemanly conduct, is the question presented and decided in Stewart v. Lawson, 165 N. W. 716, decided by Michigan Supreme Court. It was held that in such a case the rule, that no act by a third party, not acquiesced in or encouraged by the landlord, interfering with quiet enjoyment, applied and there was no eviction barring landlord from demanding rent from an outgoing tenant removing without giving notice.. The court in treating this question relies on decision no doubt well settled, but it may be asked whether or not this ruling fits the case of flat and apartment dwellers. As to all such there are common rights in the land and common rights in halls and stairways or elevators and possibly in other parts of the general premises. The only real living apart of tenants is behind the doors of their particular roomsand even as to these rooms there is an implied obligation to respect rights of other similar occupants. In this case the ordinary form of lease provided that no family or visitors should use "foul, abusive or offensive language or become a nuisance to other tenants or neighbors," etc. Certainly it would seem that this clause should not be for exclusive advantage of lessor, but, if the understanding was that no other kind of letting would be allowed, a particular lessee would have the right to some sort of redress, if a landlord let upon any other terms or, if having let, a lessee violated the provision. A tenant annoyed by such conduct would have the right to complain and if his complaint was not respected by an offender being put out, then himself could claim an eviction. Such a situation ought to be deemed somewhat analogous to that which would prevent a seller in a plan of restricted covenants as to buildings from selling to one without his being so restricted or vendee being allowed to disregard such covenants. Is another tenant such a third person as the ordinary rule refers to? DIVORCE-DECREE IN ANOTHER STATE AS PRESUMPTIVE EVIDENCE IN PROSECUTION.-In State v. Herren, 94 S. E. 698, prosecution for bigamy, it was held by North Carolina Supreme Court, that a decree of divorce in another state did not estop the State of North Carolina from showing its invalidity on the ground that the defendant in such prosecution was never a bona fide resident of such other state, and such divorce was null and void. In this case the defendant was first married in North Carolina and afterwards obtained a divorce in Georgia, where he married a second time. He then removed to North Carolina, where he and the woman he married the second time lived as man and wife. Defendant offered deposition to show that he was a resi dent of Georgia for one year preceding the beginning of the divorce proceeding as required by the laws of that state. There was constructive service only in the case. Reference is made to Andrews v. Andrews, 188 U. S. 14, as establishing the proposition that the state could show that there was no bona fide domicile in the state where the divorce was obtained, and to Haddock v. Haddock, 201 U. S. 573, that the faith and credit clause does not prevent inquiry into the jurisdiction of the foreign court rendering the decree. Further it was said that the states "have the right to determine what effect shall be given to the decrees of other states in this class of cases." Atherton v. Atherton, 181 U. S. 170; Haddock v. Haddock, supra. A concurring opinion in the instant case says: "If the record in the divorce proceeding shows that the question of evidence was passed on, or it is recited in the decree, the presumption is in favor of the jurisdiction, and the burden is on the party attacking the decree to prove that the plaintiff was not a resident when it was granted, but, if there is no recital and no finding and the record shows that the question of residence was not considered, the burden is on him who relies on the decree to prove residence, as otherwise it hiring halls for their meetings as occasion arises; it has no creed other than the would not appear that the court had jurisdic- Bible; and in accordance with its interpre tion." In this case the burden was put upon defendant to show residence. But if it was shown that the foreign court was one of general jurisdiction, why does it not follow that omnia presumuntur rite acta? It was said that in the trial "no issue as to residence was submitted to the jury nor is there any recital or adjudication in the decree, and, on the contrary, the language of the verdict and of the decree show that the cause for divorce was alone considered." We doubt very greatly whether the presumption of jurisdiction is thus displaced where the cause in a foreign state was there disposed of in a court of general jurisdiction. It, no doubt, is true that the finding of bona fide residence might be assailed, but this is another thing than saying that no presumption in favor of such residence did not obtain merely because recitals were not full. EXEMPTION OF MINISTERS FROM MILITARY SERVICE. The policy of the legislature in exempting clergymen from the duty of military service is contained in Exception 4 of the first Military Service Act of 1916, and is expressed in the words: "Men in Holy Orders or Regular Ministers of any religious denomination." That phrase has now been the subject of not a few very interesting judgments, one feature of which is the disclosure of a number of bodies, some of them practically unknown, holding what may, we hope without offense be called peculiar views. The first of these to come under judicial scrutiny was the International Bible Students' Association, regarding whom decisions in both England and Scotland have been given in this respect. That body has no churches, simply (1) Kipps v. Lane, 33 T. L. R. 207; and Guy and others. 54 S. L. R. 540. tation of the methods of church government of the Early Apostolic Church never appoints or elects one to whom it applies the term minister. In fact the Association carefully avoid the word "Minister,” its officebearers being designated elders, deacons, and Church Secretary. All elders are appointed for a period of six months, but can be reappointed on the expiry of that period. No elder of the Association receives any pay. He maintains himself by working at a secular occupation. The military authorities, while conceding that the Association was a religious denomination, maintained that its elders were not regular ministers in the sense of the statute. The Courts have sustained the contention of the military and declared these elders liable to military service. The exception it will be noted requires as a condition of exemption not only the status of "regular minister" but regular minister of a religious denomination. In re a Mormon Elder Hawkes v. Moxley, the view had been taken in the inferior Court that the Latter Day Saints are not a "religious denomination," the principle ground for so holding having been that the Mormon Church did not appear in the Army Council's list of recognized religious denominations, also that they were a small body having only 50,000 adherents, and were, moreover, alien to Great Britain and practiced polygamy. On appeal these findings were overruled. It was pointed out that the Army Council's list of denominations was not conclusive; that as a body the Mormon Church was not so small as to be incapable of being regarded as a (2) 33 T. L. R. 308. religious denomination; that though alien | Boatmen's Friend Society, which had to Great Britain the same might be said of the Roman Catholics, the Greek, or the Lutheran Churches, and that as regards polygamy the fact appeared to be that that practice had been abolished by the Mormons a generation ago. The conviction against the appellant was accordingly quashed, and the case was sent back to the Justices to be reheard on the simple point whether or not he was a "regular minister" of the Mormon Church and so entitled to exemption. In Kick v. Donne3 the man concerned, as in the cases of the International Bible Students' Association, worked at a secular occupation, in addition to being a minister. The body he served was the undenominational Church at the village Curry Rivell, which was a fellowship formed there as a result of a visit of the Faith Mission Evangelists. They believed in the Protestant Creed with adult baptism. Their minister preached, visited and baptised, but did not marry, all the marriages of the community being by civil ceremony. There was no other congregation of this undenominational Church, and that at Curry Rivell consisted of only fifty persons. Their minister was of military age, and the justices | held regarding him that he was liable to serve in the army as the body in question was not a religious denomination within the meaning of the act. Their finding was not altered on appeal, the Lord Chief Justice remarking that he was not prepared to say that if the Justices found as a fact that the church referred to did not constitute a religious denomination, they had so found contrary to law. A similar result was reached in In re Bratt. There the appellant was a missionary of Incorporated Seamen and (3) 33 T. L. R. 325. (4) 143 L. T. J. 395. had thirteen mission stations and seven districts, and he had a congregation at Sheffield. At most of the mission stations the society had premises of its own, all of them being registered as places of worship, and most of them being licensed for marriages. There was no evidence to show that membership of the society was confined to members of any religious denomination. The number of members was limited to 100. Only persons connected with one of the branches of the Protestant Christian Church were eligible for election as members of the general committee or of a district committee. There were no trust deeds of the society to define its doctrine, and each missionary could preach any doctrine, the only restriction being a power of dismissal possessed by the general committee. The members of that committee belonged to various religious Protestant denominations. On a summons against the appellant for absenting himself from military service the justices found that the society was not a religious denomination; that the appellant's congregation was not a religious denomination, and that the appellant was not "a regular minister of any religious denomination; and they decided that he was liable to military service. On appeal it was held that the justices were right in concluding that the society was not a religious denomination, and their decision was affirmed. |