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June 15, 1950


The opinion of the court was delivered by: KIRKLAND

The defendant herein was charged with grand larceny involving the alleged theft of an automobile. On the occasion of his taking the stand, the question arose, upon objection of the defendant, as to whether or not a prior felony conviction for an unauthorized use of an automobile could be shown as a basis of impeachment.

In support of the objection, counsel for the defendant placed in evidence an honorable discharge of the defendant, Robert J. Richards, which was granted on the eighth day of November, 1946, and the Court found as a fact that he was in the armed services of the United States for a period of one year from November 2, 1945, until November 8, 1946, at which time he was honorably discharged.

 As far as research could ascertain, this particular matter has never been interpreted by any Federal Court since the proclamation was issued.

 In some instances Presidential proclamations have been accompanied by letters of transmittal or letters of explanation. That is not present in this instance. Therefore, the Court is of the opinion that a judicial interpretation of the effect of such pardon will aid in the disposition of this objection.

 The pardon issued by President Truman is, by its terms, a full pardon and in issuing this general amnesty the President has followed precedent set by Washington in 1795, by Adams in 1800, by Madison in 1815, by Lincoln in 1863, and by Roosevelt in 1902. *fn2" The effect of this pardon is to be governed by the treatment given any other full pardon issued by the President, *fn3" except such pardons as are issued for innocence.

 The question at bar, then, is confined to the simple problem of whether or not a pardon removes the admissibility of the original judgment for the purpose of impeaching the credibility of a witness.

 The history of the effect of a pardon is both interesting and enlightening. Blackstone referred to the pardoning power as 'the most amiable prerogative of the crown' and predicted that, 'In democracies, this power of pardon can never subsist; for there nothing higher is acknowledged than the magistrate who administers the laws * * * .' 4 Blackstone's Commentaries, 4th Ed., by Kerr, 404 (1876). The framers of our Constitution were not impressed, however, and provided, ' * * * and he (the President) shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment'. Art. 2, Sec. 2, Cl. 1. This action thus bestowed upon the President, 'the most amiable prerogative of the crown'.

 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 ...

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