One of the earliest decisions on the question at bar was rendered in Rockwood's Case, Holt 683, 685; 90 Eng.Reprint 1278 (1696) where the Court said: ' * * * the pardon restores him to his former capacity, and prevents any further forfeiture; * * * the conviction indeed might be objected to his credit, but could not be urged against his being a witness * * * .'
A further statement of the common law rule is found in 7 Bacon, Abridgment of the Law, Bouvier's Ed., title Pardon (h), p. 416 (1856): 'Also a pardon restores a man to his credit so as to enable him to be a witness; but yet his credit must be left to the jury.'
The confusion among the courts of this country as to the effect of a pardon may be traced to dictum of a Supreme Court decision which held: 'A pardon reaches both the punishment prescribed for the offense and the guilt of the offender * * * . It releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is an innocent as if he had never committed the offense * * * . It removes the penalties and disabilities, and restores him to all his civil rights. It makes him, as it were, a new man, and gives him a new credit and capacity.' Ex parte Garland, 1860, 4 Wall. 333, 380, 71 U.S. 333, 380, 18 L. Ed. 366. Yet some years later the Court in Burdick v. U.S., 1914, 236 U.S. 79, 91, 35 S. Ct. 267, 269, 59 L. Ed. 476, referred to the 'confession of guilt implied in the acceptance of a pardon'.
The common law treatment of a pardon was recognized by one of our state courts in Curtis v. Cochran, 1870, 50 N.H. 242: 'A pardon is not presumed to be granted on the ground of innocence or total reformation. It removes the disability, but does not change the common-law principle that the conviction of an infamous offence is evidence of bad character for truth. The general character of a person for truth, bad enough to destroy his competency as a witness, must be bad enough to affect his credibility when his competency is restored by the executive or legislative branch of the government.'
In Vedin v. McConnell, 1927, 22 F.2d 753, 754 the Ninth Circuit Court of Appeals held that: 'The pardon in no wise negatives the implications of the conviction in respect of plaintiff's character, and the jury was entitled to knowledge of it, as bearing on his credibility as a witness.'
The text writers are in accord with this statement of the law, and in considering the existent confusion in the courts, Professor Williston said: 'If, however, the eyes of the law were unable to distinguish between a pardoned convict and one who had never been found guilty of a crime, proof of the conviction should be as inadmissible to affect the credibility of the witness as it is to affect his capacity to testify; yet it has always been the law and still is, that in spite of the pardon, the conviction may be used to discredit the witness.' Williston, Does a Pardon Blot Out Guilt?, 28 Harvard Law Review, 647 (1915), citing U.S. v. Jones, 1824, 2 Wheeler Cr.Cas.,N.Y., 451; Baum v. Clause, 1843, 5 Hill, N.Y., 196; and Martin v. Commonwealth, 1904, 78 S.W. 1104, 25 Ky.Law Rep. 1928 (wherein the Court held that evidence of the pardon was not admissible as tending to remove the discredit of the conviction). See also Wigmore on Evidence, Sec. 980(3), p. 543, and People v. Hardwick, 204 Cal. 582, 269 P. 427, 59 A.L.R. 1489.
Another author recently wrote that: 'A prisoner pardoned for good behavior in prison, or one given a pardon after service of his sentence, in order to restore his civil rights, should not thereupon resume the position of an innocent man, but should continue to be regarded as a convicted criminal who has served time in the penitentiary for his crime * * * . If offered as a witness in Court, his credibility should be subject to the same suspicion as that of any other convicted criminal * * * . The damage to his credibility is not a legal consequence of the conviction; the conviction is merely evidence that he is untrustworthy, a fact not wiped out by pardon * * * . Insofar as conviction of crime is evidence bearing upon a witness' truthfulness, it is not affected by such a pardon * * * .' Weifhofen, The Effect of a Pardon, 88 U.of Pa.Law Rev. 177, 179, 183, 184 (1939).
With further reference to the effect of this Presidential proclamation, the Department of Justice stated in their Volume V, Bulletin 7, Criminal Division, dated March 4, 1946:
'1. The fact of conviction remains insofar as it has a bearing on character. 22 Opinion Att.Gen. 36, 39-40. It does not bar the competency of the party to testify. Boyd v. U.S., 142 U.S. 450 (12 S. Ct. 292, 35 L. Ed. 1077) (1892). However, it is relevant as to the character of a party or the credibility of a witness. Vedin v. McConnell, (9 Cir.), 22 F.2d 753.
2. The beneficiaries would not formally have to accept the pardon, nor plead it, when parties to an action, in order to acquire the benefits. Armstrong v. U.S., (13 Wall. 154), 80 U.S. 154 (20 L. Ed. 614). The pardon is a matter of public record, of which the court can take judicial notice. U.S. v. Wilson, (6 Pet. 150), 32 U.S. 154 (20 L. Ed. 614). The pardon is a
3. The pardon eliminates any continuing penalty against the beneficiaries, as for instance, unpaid balances of fines. Ex parte Garland, (4 Wall. 333, 380-381), 71 U.S. 33, 380-381 (18 L. Ed. 366).'
These foregoing remarks point out the reason for the rule, and on this basis and on the authority of the aforementioned decisions, the ruling of this Court is that the prior conviction as well as the pardon may be shown, and the credibility of the witness will be left to the jury.