
    COURT OF APPEALS.
    Samuel F. Perry, plaintiff in error, agt. The People, defendants in error.
    
      Gormction for crime not to exclude witness—how conviction proved— Code of Givil Procedure, section 832.
    The Code of Civil Procedure was intended to apply only to civil actions and proceedings, except where otherwise provided ; and section 832, declaring “a person who has been convicted of crime or misdemeanor ” to be, notwithstanding, a competent witness, before the amendment of 1879 making such convict "a competent witness in a civil or criminal action or special proceedings,” did not remove the statutory disqualification as a witness of a person convicted and sentenced for a felony.
    Though the record is the best evidence of a conviction, yet although no foundation has been laid for secondary evidence, if without objection from either witness- or party the fact of such conviction is proved by parol, and is not disputed, it cannot be disregarded.
    
      Decided October, 1881.
    
      Peter Mitchell, for plaintiff in error.
    
      Demiel G. Bollims, district-attorney, for defendants in error.
   Rapallo, J.

— The Revised Statutes (2 B. S., 701, sec. 23) provide that no person sentenced upon a conviction for felony shall he competent to testify in any cause, matter or proceeding, civil or criminal, unless he be pardoned by the governor or the legislature, except in the cases specially provided by law.

The Code of Oivil Procedure, as passed in 1876 and amended in 1877 and 1878, provides {sec. 832) that “ a person who has been convicted of a crime or misdemeanor is, notwithstanding, a competent witness, but the conviction may be proved for' the purpose of affecting the weight of his testimony.”

This section was further amended in 1879' so as to render such convict a competent witness “in a civil or criminal action or special proceeding.” The question now arises .whether, before this amendment, section 332 applied to criminal cases, the plaintiff in error having been tried and convicted in March, 1879, before the passage of the amendment.

The Code of Oivil Procedure purports, from its name, to regulate the mode of procedure in civil cases. The act is entitled “An act relating to courts, officers of justice and civil proceedings.” By the explanatory act passed on the same day (chap. 449 of Laws of 1876) it is provided (sec. 4): “ In that act and in this act the word ‘ action ’ refers to a civil action; the word judgment ’ to a judgment in such an action; the term special proceeding ’ to a civil special proceeding, and the word order ’ to an order made in such an action or special proceeding, except where a contrary intent is expressly declared in the provision containing the word or term, or plainly apparent in the context thereof.”

We think it very clear that this code was intended to apply only to civil actions and proceedings, except where otherwise provided. This view is fortified by reference to the provisions which are in terms made applicable to criminal cases. At the time the plaintiff in error was tried, these were very few. Section 533 provided that a pleading should not be used in a criminal prosecution against a party as proof of a fact admitted or alleged therein. Section 790 provided for a preference in the trial or hearing of criminal over civil cases. Sections 914 to 920 provided for taking depositions in this state of witnesses in civil or criminal proceedings without the state, and by the explanatory act (chap. 449 of Laws of 1876, sec. 5, subds. 2 and 7) certain provisions of the Code regulating the drawing of jurors were made applicable to criminal cases. These are, as far as I have discovered, all the provisions of the Code of Procedure having any reference to criminal cases. Section 832 is found in connection with other provisions relating to evidence which are not in their nature applicable to criminal trials, and the adoption, in 1879, of the amendment expressly applying that section to criminal tiases, tends to show that the section as it stood before the amendment was not regarded as thus applicable. We are of opinion that before the amendment section 832 did not remove the disqualification as a witness of a person convicted and sentenced for a felony.

It is claimed, however, that in the present case the conviction and sentence of the witness were not proved by competent evidence, and therefore his testimony was rightfully received. He testified without objection either on his own part or on the part of the district attorney, that he had been convicted in Troy .on an indictment for burglary and receiving stolen goods, and sentenced to imprisonment for four years in the state prison at Dannemora, and that he had never been pardoned. If the objection had been taken either by the witness or the district attorney, the prisoner should not have been permitted to prove the conviction and sentence in this manner. But no such objection was taken. The facts were Within the knowledge of the witness, and the only objections to which the testimony was subjected were, that the record was the best evidence, and no foundation had been laid for secondary evidence. But to render such objections available they must be taken when the evidence is offered, for they are capable of being obviated, and if they are not made they are regarded as waived. I have found no authority for the proposition that proof of the disqualification of a witness by rear son of his having been convicted of a felony is an exception to the general rule. Those which have been cited are far from sustaining the proposition. People agt. Herrick held merely that a witness was not bound to answer either on voir dire or on' cross-examination, whether he had been convicted of crime, and that it was error to compel him to answer when the objection was made by the party calling him. The ground of this decision was that a witness is not bound to answer any question which may render him infamous or disgraced. In Hilts agt. Colvin (14 John., 182), the incompetency of the witness was sought to be proved by parol evidence of his conviction of a felony, and to justify the offer of parol evidence. Proof was given tending to show the destruction of the record of conviction by the burning of the county clerk’s office. The objection to the sufficiency of this proof was distinctly taken, and it was insisted that notwithstanding the destruction of the record there still was higher proof than oral evidence, and the court held that the objection was well taken, on the ground that by 1 Revised Statutes, chapter 146, section 2, district attorneys were required to send to the court of exchequer a certificate of every conviction and the judgment given thereon, and such certificate was made by the statute good evidence* of such conviction. There is no intimation in the case that if the proper foundation had been laid the fact could not have been proved by parol, even against objection, or that if no objection to the mode of proof had been made it would have been held insufficient to disqualify the witness.

In King agt. Inhabitants of Castell (8 East, 77), the point decided was that the party who called the witness and was interested to have his testimony, had the right to insist on proof by the record of the conviction of the witness, even though the witness himself admitted the fact; and it was in support of this right of the party to insist on the production of the record that the court said that a record could not be proved by the admission of any witness; that he might be mistaken as to what passed in court, &c. Newcomb agt. Griswold (24 N. Y., 298), is to the same effect. There is nothing in these cases, or any other I have found, which holds that if, without objection from either witness or party, the fact is proved by parol and is not disputed, it can be disregarded. I have found no case presenting that question unless it be Priddle's case (Leach, Oases in Crown Law, case No. 204), where on a trial before Butler, J., the witness was asked on Ms examination on Ms voir dire, whether he had not been convicted of a conspiracy and sentenced to ¡Newgatefor two years. ¡No objection appears to have been made to the mode of proof, and on his answering in the affirmative his testimony was rejected. In the present case it is quite apparent that there was no contest on the trial as to the fact of the. witness being an unpardoned convict. It was substantially conceded, but the testimony was doubtless admitted on the ground that he was made a competent witness by section 832 of the Code, and if error was committed in that respect, the-prisoner should not be deprived of the benefit of his exception to the reception of the testimony of the witness.

. The judgment should be reversed and a new trial ordered. All concur.  