
    Dom. Rex vers. Pourksdorff.
    1764.
    A Conviction of Petit Larceny and judgment thereon do not destroy the Competency of a Witness.
    INDICTMENT vs. Pourksdorff for Stealing. A Woman offered as Evidence who at the same Term had pleaded guilty to an Indictment of the same Nature. ()
    The Attorney General
    
    objected to her, that the pleaded guilty to an infamous Crime, and therefore no Witness, and cited Hawkins’s Pleas of the Crown, B. 2, ch. 33, § 129; ch. 37, §§ 48 to 53.
    
      Mr. Kent for the Prisoner.
    
    Law of Evid. 145. Judge Raymond, 32. 2 Sid. 51. ()
    
      The Attorney General then moved for Judgment; and
    
      Granted.
    
    The Question then arose, whether, when there is a Judgment, and not an infamous Judgment, it bars the Person on whom Judgment is passed, from being a Witness.
    
      Attorney General & Mr. Kent cited as above.
    
      
      Ch. Just.
    
    When the Crime is so great and of such a Nature (for Instance the Crimen Falsi in Law) as it is to be supposed that the Person guilty has lost all Sense of Truth, and would not hesitate at violating his Oath, in such Case no Doubt not to be admitted, but even where the Judgment is infamous, (as that a Person shall fit in the Pillory for writing a Libel,) yet if the Crime is not of such a Nature as the least to invalidate the Credit of the Witness’s Oath, (as in the Case I mentioned, and that of the Witness now offered,) no Doubt they may be admitted.
    
      Attorney General. Theft is infamous.
    
      Kent. Petit Larceny is not.
    
      Attorney General. There is no Difference between grand and petit Larceny.
    
      Ch. Just. Do you suppose, Mr. Attorney, every Person convicted of petit Larceny at the Old Baily is ever after barred from being a Witness?
    
      Attorney General. I don’t know.
    
      
       It is the Crime and not the Punishment that makes a Man infamous. Theory of Evid. 107, q. v.
      
    
    
      
      (1) Rex v. Pourksdorff & al., Rec. 1764, sol. 123.
    
    
      
      (2) Where it is decided that a conviction without judgment thereon is not sufficient to disqualify a witness.
    
   The Court

unanimously held, No; () and ordered the Witness to be sworn, directing the Jury to give what Weight they pleased to her Evidence.

This Evidence alone cleared Pourksdorff by swearing the stole the Goods herself. 
      
      (3) It seems to have been affirmed that the conviction in this case was for petit larceny. But the only indictment against a woman for larceny, on the record of this term, is against Margaret Knodle, joined with Pourksdorff on a former indictment for grand larceny, to which the pleaded guilty. In either case, however, the decision appears unaccountable, in view of the well-known rules of the common law on this subject, at that time unaltered by statute. A conviction of felony destroyed the competency of a witness. Co. Lit. 6 b. And petit larceny was felony, although it did not produce a forfeiture of land. See 1 Hawk. (ed. of 1795) c. 36, § 6. But the punishment for grand larceny (burning in the hand) restored the competency of the witness (Com. Dig. Testmoigne — Witness A 3), while that for petit larceny had no such effect, for which reason it was subsequently provided in England by 31 Geo. 3, c. 35, “ That no person shall be an incompetent witness by reason of a conviction of petit larceny.”
      Whether the distinction between grand and petit larceny was ever adopted or recognized in Massachusetts — quiere. In Commonwealth v. Keith, 8 Met. 531, it was held that a conviction of larceny to the value of forty cents, before a justice of the peace, was sufficient to exclude the witness. And there can be no doubt that any conviction of larceny had this effect until all incompetency from crime was finally abolished by Sts. 1851, c. 233, § 97, & 1852, c. 312, § 60. Commonwealth v. Green, 17 Mass. 515, 537. Commonwealth v. Keith, ub. sup.
      
     