State v. Merriman

*89 ORDER ON REHEARING

Bell, Judge:

We granted a rehearing in this case on the limited question of whether a witness is statutorily disqualified from giving evidence by his prior conviction for perjury.

Section 16-9-10, Code of Laws of South Carolina, 1976, provides that a convicted perjurer’s oath shall not be received in any court of record in South Carolina. In our prior opinion, we held that this statute, a reception of 5 Eliz. c. 9 (1563) enacted by our Legislature in 1712, was repealed by the later enactment of Code Section 19-11-60, which provides that no person shall be disqualified to testify in the courts of this state by reason of his conviction and sentence for any crime.

On rehearing, Merriman and Mazzell argue that in so holding we overlooked Code Section 24-21-990(6), which provides a pardon shall restore to a person all civil rights lost as a result of conviction, including the right “not [to] have his testimony excluded in a legal proceeding if convicted of perjury.” They contend Section 24-21-990(6) constitutes strong evidence that the Legislature has not repealed the statute of Elizabeth. The State, on the other hand, argues that Section 24-21-990(6) is merely declaratory of the common law relating to pardons and cannot reasonably be construed as an indication that the statute of Elizabeth is still in effect.

The narrow issue presented is whether Section 24-21-990(6) does anything more than declare existing common law. 1 If a person whose perjury conviction has been pardoned is competent to testify at common law then Section 24-21-990(6) is declaratory and does not affect the result in this case. For the reasons which follow, we conclude Section 24-21-990(6) is declaratory of the common law.

*90 I.

The classic definition of a declaratory statute is found in Blackstone’s Commentaries:

Statutes ... are .. . [declaratory, where the old custom of the kingdom is almost fallen into disuse, or become disputable; in which case the Parliament has thought proper, in perpetuum rei testimonium and for avoiding all doubts and difficulties, to declare what the common law is and ever hath been.

1 W. Blackstone, Commentaries* 86 (Chitty ed. 1844). Blackstone’s definition is widely accepted in'American decisional law. The only change has been to extend the concept to statutes which clarify the meaning of other statutes. Personal Finance Co. of Braddock v. United States, 86 F. Supp. 779 (D. Del. 1949); Board of Comm’rs of Wyandotte County v. General Securities Corp., 157 Kan. 64 , 138 P. (2d) 479 (1943). By definition, a declaratory statute does not change existing law, nor announce new law. It operates to express what formerly was only implied or was not clear. See Nelson v. Sandkamp, 227 Minn. 177 , 34 N. W. (2d) 640 , 5 A.L.R. (2d) 1136 (1948).

II.

At common law, convicted felons and perjurers were incompetent to testify in court proceedings. The rule has a long history. Its antiquity is attested by a detailed discussion in Glanvill, the oldest systematic treatise on the English common law (circa 1187). In addition to other penalties, Glanvill states that those duly convicted of perjury “shall lose their law for ever, and thus rightly incur the lasting mark of infamy. This penalty is justly ordained, so that the fear of such punishment shall prevent all men from swearing a false oath____” Glanvill, ii. 19 (G. Hall ed. 1965). A person who “lost his law” was no longer considered oath-worthy and, according to Glanvill, “he shall never again be allowed as a witness in court.” Id., ii. 3.

The same rule is confirmed in Bracton. In a section dealing with the punishment for those convicted of perjury, Bracton states:

*91 They incur perpetual infamy and lose the lex terrae, so that they will never afterwards b[e] admitted to an oath, for they will not henceforth be oathworthy, nor be received as witnesses, because it is presumed that he who is once convicted of perjury will perjure himself again.

Bracton, On the Laws and Customs of England, f. 292b, at 346 (S. Thorne ed. 1977). Later authorities are to the same effect. See 1 Co. Inst. 6b (11th ed. London 1719); 2 M. Hale, Historia Placitorum Coronae, c. 37, at 277 (Glazebrook ed. 1971) (1st ed. London 1736); 1 Starkie’s Law of Evidence, 83 (Boston 1826).

Although conviction of a felony or perjury rendered the convict incompetent as a witness, the English cases also held a pardon of felony operated to restore a person’s competency to testify. In the leading case of Cuddington v. Wilkins, (1614) Hob. 68, 80 Eng. Rep. 216, the court stated the king’s pardon extinguishes a felony conviction and clears the convict of the crime and the infamy attending conviction. Later cases specifically recognized that a pardon restores competency to testify. See, e.g., Sir Henry Fine’s Case (1623) Godb. 288, 78 Eng. Rep. 168; Elizabeth Cellier’s Case, (1680) Raym. 369, 83 Eng. Rep. 192; Rex v. Gully (1773) 1 Leach 98, 168 Eng. Rep. 151; Leyman v. Latimer (1877) 3 Ex. D. 15; Hay v. Justices of Tower Division of London (1890) 24 Q.B.D. 561. See also, 2 Hale P. C. c. 37, at 278; 4 Bl. Comm. * 402.

Despite this general rule, some doubt existed in the early seventeenth century about the effect of a pardon in the case of perjury. In Brown v. Crashaw, (1612) 2 Bulstr. 154, 80 Eng. Rep. 1028, Sir Edward Coke, then Chief Justice of the King’s Bench, expressed the opinion that “if one be attainted of felony, and pardoned, he shall not afterwards be sworn of a jury, for that he is not probus, & legalis homo. ” Coke held to a similar view in cases of perjury. In the Institutes he states: “So odious was perjury, that by the law of God it was not to be pardoned: Non misereberis eius, & c.” 3 Co. Inst. c. cv. (London 1797). However, Coke’s view was rejected by the later authorities:

[I]f the king pardon these offenders [including perjurers], they are thereby rendered competent witnesses, *92 tho their credit is to be still left to the jury, for the king’s pardon takes away poenam & culpam in foro humano, M. 12 Jac. B. R. Cuddington & Wilkins(b): but yet it makes not the man always an honest man, and there he shall not be a witness against the opinion of my lord Coke in Crashaw’s case____

2 Hale, P. C., c. 37, at 278; see also 4 Bl. Comm. * 402. The point was settled by Lord Chief Justice Holt in a series of decisions allowing the testimony of convicted perjurers who had been pardoned. See Rex v. Crosby (1695) 2 Salk. 689, 91 Eng. Rep. 584 (dictum); Rex v. Griepe (1697) 12 Mod. 139, 88 Eng. Rep. 1220; Rex v. Ford (1701) 2 Salk. 690, 91 Eng. Rep. 585; Anon. (1701) 3 Salk. 155, 91 Eng. Rep. 748 (all stating that at common law the king may pardon perjury and thereby wipe away the convict’s disability as a witness); accord Dover v. Maestaer (1803), 5 Esp. 92, 170 Eng. Rep. 749.

III.

These common law rules were altered by legislation in England. By the statute of 5 Eliz. c. 9 (1563), Parliament declared perjury to be a statutory crime and provided that no person convicted of perjury would thereafter be received as a witness in any court of record in the realm unless the conviction were reversed. Later cases interpreted this provision to take away the power of the king’s pardon to restore a person to competency as a witness if he was indicted and convicted under the statute. See, e.g., Rex v. Griepe (1697) 2 Salk. 513, 91 Eng. Rep. 437; 2 Hawkins, Pleas of the Crown 548, § 52 (8th ed. 1824). However, the statute of Elizabeth did not change the effect of a pardon in cases of common law perjury. See Dover v. Maestaer, supra (testimony of witness admitted when he produced a King’s pardon for conviction of common law perjury). Likewise, a pardon by act of Parliament would remove the disability even in the case of statutory perjury. Rex v. Ford, supra.

The law was again altered by the Evidence Act of 1843, 6 & 7 Viet. c. 85, which removed the incapacity of persons convicted of crime to give testimony in legal proceedings. See 1 Archbold, Criminal Practice, Pleading & Evidence* 155 (6th ed. New York 1853). Under the Evidence Act, a *93 convicted perjurer is competent to testify, but the fact of his conviction may be established and the jury may give it what weight they choose in determining the witness’s credibility. See 17 Halsbury’s Laws of England, §231, at 162 (4th ed. London 1976).

IV.

In South Carolina the law developed along similar lines. At common law, a person convicted of an infamous crime is incompetent to give testimony by reason of the conviction. State v. Jeffcoat, 148 S. C. 322, 146 S. E. 95 (1928). However, South Carolina also follows the common law rule that a pardon restores the competency of a convicted person as a witness. See Jones v. Harris, 32 S.C.L. (1 Strob.) 160 (1846). Section 24-21-990(6) merely restates this common law rule.

In South Carolina, as in England, the legislature altered the common law by receiving the statute of Elizabeth in its entirety. See Act No. 322 of 1712, 2 Stat. at Large 486. Insofar as it disqualified a convicted perjurer from giving evidence in subsequent legal proceedings, this statute was declaratory of the common law rule. However, to the extent it took away the power of a pardon to restore the capacity to testify, it altered the common law.

The law changed again when South Carolina enacted a statute similar in substance to the Evidence Act of 1843. See Act No. 632 of 1934, 38 Stat. at Large 1193 (currently codified as Section 19-11-60 of the 1976 Code). The 1934 Act provides:

No person shall be disqualified to testify in the trial of any cause in the courts of this State by reason of conviction and sentence for any crime. The fact of such conviction and sentence may be established and the credibility of the testimony of any such witness shall be entirely for the Jury or the Court determining the facts at issue, as the case may be.

Section 2 of the 1934 Act is an express repealer of “[a]ll Acts or parts of Acts inconsistent with this Act.” Because it disqualifies convicted perjurers from testifying, the statute of Elizabeth is inconsistent with the 1934 Act. To that extent, therefore, it was epxressly repealed by the 1934 Act.

*94 The subsequent enactment of Section 24-21-990(6), rather than indicating the statute of Elizabeth is still in effect, provides further support for the conclusion that it has been repealed. Under the statute of Elizabeth, an executive pardon did not restore competency to testify. Rex v. Griepe, supra; Houghtaling v. Kelderhouse, 1 Parker Crim. Cas. 241 (N. Y. 1851). Under Section 24-21-990(6) a pardon does restore competency to testify. Thus, the statute of Elizabeth not only conflicts with the 1934 Act, but also conflicts with Section 24-21-990(6). In the face of these later enactments, we fail to see how the statute of Elizabeth retains any vitality in South Carolina law.

Section 24-21-990(6) is, of course, not directly relevant to this case, since Hines, the witness whose testimony is challenged by Merriman and Mazzell, never received a pardon for his perjury conviction. However, the later enactment of Section 24-21-990(6) is consistent with the repeal of the statute of Elizabeth by the 1934 Act. Hines’s competency to testify derives from the 1934 statute, which not only repealed the statute of Elizabeth in South Carolina, but also altered the traditional common law rule rendering convicted criminals incompetent to testify unless they had been pardoned. The later enactment of Section 24-21-990(6) merely restates the common law rule relating to pardons. It does not alter the plain intent of the 1934 statute to permit testimony by convicted, but unpardoned, criminals.

Accordingly, we adhere to our earlier opinion. The stay of remittitur heretofore granted is revoked.

Sanders, C. J., concurs.

Gardner, J., concurs separately.

The recodifieation argument developed by Judge Gardner in his separate concurring opinion was not raised in the petition for rehearing nor was it argued by counsel for Merriman and Mazzell. As the State has had no opportunity to be heard on this theory, we do not address it.