
    Case No. 14,652.
    UNITED STATES v. BROCKIUS.
    [3 Wash C. C. 99.] 
    
    Circuit Court, D. Pennsylvania.
    Oct. Term, 1811.
    Witness — Competency — Conviction — Infamous Offexof.
    1. A person who had been convicted in a court of this state, of an assault and battery with intent to murder, and sentenced to fine and imprisonment. is a competent witness.
    [Cited in Boyd v. State (Tenu.) 29 S. W. 901; Com. v Dame. 8 Cush. 3S5.]
    2. If ineompeteney, produced by the conviction of a witness, depends on the punishment, and not the nature of the offence, yet where an infamous punishment, in the discretion of the court, is not added, there is no disqualification, because it might have been inflicted. Fine aud imprisonment is- not an infamous punishment.
    [Cited in U S \. Biock. Case No. 14.009.]
    ¿Cited in Stale v. Nolan (R. I.) 10 Atl. 482.]
    Indictment tor smuggling. One of the witnesses, in favour of the prosecution, was objected to. on tlie ground, that he had been convicted of an assault aud battery witli intent to murder, aud had been sentenced to pay a fine, and to six months imprisonment, as appeared h.v the record produced in evidence.
    Mr. Levy, for defendant,
    read the following cases: Co. Lift. 6. 13: Kel. 37. 38; 2 Wils. 18: 2 Bac. At»-. 583; 4 Bl. Comm. 217; 1 East, P. C. 407.
    Mr. Dallas read MeNal. Ev. 206 et seq.
    
      
       [Originally published from the MSS. of Hon. Bnshrod Washington. Associate Justice of the Supreme Court of the United States, under the supervision of Richard Peters, Jr., Esq.]
    
   .BY THE COURT:

The punishment of this offence at common law, is fine and imprisonment. and frequently the pillory is added; but it seems to be in the discretion of the court. In lien of tlie common law punishment of branding, whipping, and pillory, the Penal Code of this state, has substituted confinement and hard labour. Now, even if the ineompeteney produced by conviction, depended on the punishment, instead of the nature of the offence: where the infamous punishment forms no part of the sentence, there would be no disqualification, because it might have been inflicted. In this ease, the punishment by fine ami imprisonment, is not to be considered as an infamous punishment, so as to render the witness incompetent.

The case was left to the jury, on the evidence. who found the defendant not guilty.’

Quere per WASHINGTON, whether, in any ease, the statutory punishment, by confinement to hard labour, will destroy the competency of the witness, ifnless the crime is infamous?  