
    SUSSEX OYER AND TERMINER,
    MAY, 1807.
    THE STATE against BAILLY.
    ON INDICTMENT FOR ARSON.
    A witness is not bound to answer whether he has been convicted and punished for petit larceny.
    Thomas Van Orden, on the trial of this cause, was examined as a witness for the State.
    [*e] The .counsel for the defendant, asked the witness if he had not been convicted of petit larceny and punished.
    
      Mr. Isaac H. Williamson claimed the protection of the court in behalf of the witness.
    
      Mr. Aaron Ogden, for the defendant, said
    — That he believed that there were decisions authorizing this question, founded as he understood, on this principle, that the witness having been punished, could not be endangered by the answer. That he put the question that' it might go to his credibility, and not his competency.
    
      Mr. Williamson said,
    that he believed that there had been an opinion of this nature by Lord Kenyon, but that the opinion was a modern one; and that it was neither the law nor the practice in this State.
   Pennington, J.

— The witness cannot be compelled to answer the question. I take the great principle of the common law to be, that a witness cannot be compelled to answer a question, the answer to which, tends directly to dishonor and disgrace him : such is the benignity of the law. It is true, that there are in the English books some modern cases that run counter to this principle, and in accordance with the idea suggested by Col Ogden ; but as far as my recollection goes, they are modern decisions, and not law in this State; besides, in a still'later case, Lord Ellenborough hath gone directly against those cases, and adhered with great propriety, in my opinion, to the ancient law. There is an argument pending in the supreme court, grounded on an exception taken to my opinion on a question somewhat similar to the present, at the [305] Monmouth circuit, in October, 1804. But I shall adhere to this opinion until it is otherwise decided.

Question overruled.

A similar case was decided in the same manner at the Essex Oyer and Terminer, January, 1808.

Note. — Vide Saund. P. & Ev. 954. 
      
      [*e] 1 Note — The defendant was acquitted, the jury disbelieving the witness; strong evidence having been given to show the corrupt testimony of Van Orden; after the jury had gone from the bar, the court called for him, with an intention to commit him on the charge of perjury, but he was not to be found.
     