
    Jones, et al, v. Harris, Executor, et al.
    
    An acknowledgement ofbelief in Godand his providence, is sufficient to establish the competency of a witness who has been objected to on account of defective religious belief.
    An instrument of writing issued by the President, under the seal of the United States, which remitted the remainder of the term, to one who had been imprisoned for a part of it, in the Penitentiary of Georgia, upon a conviction of having robbed the mail, was held to be a pardon, which annulled the sentence and restored the prisoner to his competency as a witness.
    Tried before Mr. Justice Butler, at Edgefield, Fall Term, 1846.
    This was an appeal from a decree of the Ordinary, upon the question, Devisavit vel non. Henry C. Turner was one of the subscribing witnesses to the will of Moses Harris, bearing date 21st August, 1840. When he was called on the stand on the part of the Executor, D. Harris, his competency as a witness was objected to, on the ground that he had been convicted of an infamous offence. In support of this objection, an exemplification of a record from the Circuit Court of the United States, for the district of Georgia, was produced, by which, it appeared that the witness had been convicted of opening the mail whilst he was the carrier thereof, and taking money which had been enclosed in a letter. Upon this state of facts, .the presiding Judge held that the witness was incompetent. But upon being-satisfied that he had obtained what his Honor regarded as a pardon from James Monroe, President of the United States, which will be produced, he held that the competency of the witness had been fully restored. He was examined. When William A. Turner was called, another attesting witness of the will, he was objected to on the ground of defect in his religious belief, from which, it was contended, he was not sensible of the obligation of an oath. Mr. Turner was one of the constables of the Court, and although he was a man of ordinary intelligence, he was not a man of reading or philosophical turn of mind. He was asked the question—do you believe in a future existence? and in future rewards and punishments? He replied, ah ! who can tell what is to be after death; none of us can tell; I cant tell. In other remarks, he showed he had no settled belief. But when asked, if he believed in a God, he promptly answered, surely I do; and said, in answer to other questions, if I were to commit a falsehood unknown to any human being, and in secret, I should feel the sting of conscience, and would be certain, that if not after death, in some way I should suffer for it. Mr. M’Daniel, sen., the father-in-law of the witness, said he was a member of the Baptist. Church., and had frequently conversed with W. A. Turner on religious subjects, and that in these conversations W. A. Turner would maintain, that although man was created by a God, he would perish like the beasts of the earth. The witness was held to be competent, and he was examined.
    The plaintiff appealed. Because, under the circumstances, his Honor, the presiding Judge, held the two witnesses above named to be competent, and allowed them to testify.
    Wigfall, for the motion.
    Bausket, contra.
    
   WitheRs J.

delivered the opinion of the Court.

This case arose upon an appeal from the decree of the Ordinary concerning the will of Moses Harris, and turns upon the question of the competency of two of the attesting witnesses to the paper propounded as such will, who were assailed as incompetent or incredible attesting witnesses. The first, (to wit, Henry C. Turner,) was alleged to be incompetent, because he had been convicted, in the Circuit Court of the United States sitting in Savannah, upon an indictment which, in one count, charged him, being a carrier of the mail, with having unlawfully and feloniously secreted, embezzled, or destroyed a letter containing money: and in another count, w:th having stolen, embezzled or destroyed a letter containing a bank bill, entrusted in the mail to his care; and upon such conviction he was sentenced to a term of imprisonment in the Penitentiary of Georgia This conviction took place in May, 1820. In July, 1823, James Monroe, President of the United States, issued an instrument under the seal of the United States, in which he directed, for causes therein stated, as follows: “that he, the said Henry C. Turner, be forthwith released from prison.” The confinement in the Penitentiary was the only punishment inflicted on this witness. Should this instrument be regarded as a pardon? This Court concur with the circuit Judge that it should be so considered. It is supposed to be the usual form of pardon by our own Executive: accomplishes all of benefit to the prisoner that is practicable, and seems to be entitled to any liberality of construction that may not contravene any well settled adjudication. A further inquiry is, if the instrument in question be not, technically, a pardon, does it nevertheless restore the competency of the party as a witness? We feel warranted in holding the affirmative; for when, by the exercise of the high pardoning power, the sentence is annulled, the punishment remitted, the offender restored to society, there does not seem to be any congruity in adhering to the legal stigma. We are the better satisfied with this result, since we find it laid down in Hoffman v. Coster, 2 Wharton, 453, (as cited in 3 Phillips on Evidence, 1504,) that competency is restored by the following description of pardon: “I do hereby remit unto him, the said J. B., the remainder of the said sentence, and order him to be liberated from further confinement, on payment, of costs.” And in the case of The People v. Pease, 3 Johnson’s cases, 383, though the pardon of a person convicted of forgery, and sentenced to the State prison for life, contained the proviso that nothing contained in it should be construed “so as to relieve the prisoner of and from the legal disabilities to him from the conviction, sentence and imprisonment, other than the said imprisonment,” yet this proviso was held repugnant to the pardon, and the party held to be a compenent witness. This conclusion renders it unnecessary to enquire, whether the offence of which the witness in question was convicted, belongs to that class that destroy his competency, or whether the disqualification is to be referred to the conviction or the description of punishment. William A. Turner was alleged to be an incompetent witness, by reason of defective religious belief. We think he was competent, on the authority of the case of Fernandes, et al., v. Henderson; Car. Law Jour., 202.

Considering the great diversity of religious faith and practice prevailing among the people who inhabit our own and other American States, and the liberality towards such diversity which has been studiously incorporated into our fundamental law, we cannot feel less inclined than Lord Hardwick was, (who was of a government very intimately connected with a particular faith and practice) to modify the very stringent opinion of Lord Coke on this vital subject: and we are satisfied to adhere to our own well considered case, above cited. Lord Hardwick was content to admit a witness “who believed in a God and his "Providence,” and the modern decisions in New York appear to conform to this doctrine. The general and approved inclination of Courts of our own and other countries, to enlarge the circle of competency by directing objections to the credit, may as well be applied in this respect as in any other. For such reasons we hold the circuit decision right, in admitting the two witnesses in question as competent; and the motion is therefore dismissed.

C’Neall J., Evans J., WaRdlaw J., concurred.  