Arnd v. Amling

Bowie, J., delivered the opinion of the Court. The appellee sued the appellants in the Court of Common Pleas in an action sounding in damages for carelessness and negligence of the appellants, in preparing to construct and constructing a house of the appellants adjoining the house of the appellee, whereby the lives of the appellee and family were endangered, and in a second count for damages done to the house of appellee, whereby the house was much injured, and the appellee sustained great loss, etc. Issues we're joined upon general and special • pleas, the • forms of which are not involved in this appeal, or material to the questions presented by the bills of exception. The appellee, to sustain the issues on his part, offered as a witness a person to whose competency the defendants objected for want of religious faith. In the language of the bill’ of exception, “ because the said witness did not believe in God, and that, under His dispensation, he, the said witness, would be morally accountable for his actions, and he rewarded or punished therefor, either in this world or the world to come,” and offered to prove by witnesses that about one year previously the witness objected to had so expressed himself to them, and to several others in their presence, on two or three different occasions.

The Court, before hearing said witnesses, allowed the appellee’s witness to be sworn upon his voir dire, and inquired of him whether or not he believed in God, and that, under His -dispensation, he, the said witness, would be held morally accountable for his acts, and punished or rewarded therefor, either in this world or in the world to come, and the said witness having answered affirmatively, the Court below offered to allow the defendants to produce any testimony to contradict that of the appellee’s witness, which the appellants’ counsel declined to do; whereupon the appellee’s witness was sworn to testify in the case, to which the appellants objected, and their objection being ¹⁹⁷ overruled, prayed leave to except. The point raised hy this bill of exception is both novel and interesting in this State, as no decision of this Court has been cited by the counsel on either side, and, it is presumed, none exists. Two questions are involved in this exception: Eirst. Whether the witness objected to should have been sworn and examined at all.

Secondly. If examined, whether he should not have been examined in reply to the testimony impeaching his competency, and not before. The general rule regarding the mode of ascertaining and determining the competency of witnesses objected to on account of “insensibility to the obligations of an oath, from defect of religious sentiment and belief,” is prescribed with great precision by the elementary writers, and more recent authors on the law of evidence. Mr. Greenleaf, vol. 1, chap. 2, sec. 370, treating of the competency of witnesses, says: “ The burden of proof is not on the party adducing the witness to prove that he is a believer, but on the objecting party to prove he is not.” * * * * “The ordinary mode of showing this is by evidence of his declarations previously made to others, the person himself not being interrogated; for the object of interrogating a witness in these cases before he is sworn is not to obtain knowledge of other facts, but to ascertain from his answers the extent of his capacity, and whether he has sufficient understanding to be sworn.” In a very elaborate note to this section, the cases of modern date, both English and American, are collected and summarized, in part, as follows : “ The witness himself is never questioned in modern practice as to his religious belief, though formerly it was otherwise.” (1 Swift's Dig., 739 ; 5 Mason, 19 ; Amer.

Jur., vol. 4, p. 79, note.) “It is not allowed even after he has been sworn.” (The Queen’s Case, 2 B. & B., 284.) ******“ The old cases, in which the witness ¹⁹⁸ himself was questioned as to his belief, have on this point been overruled.” Note 1, sec. 370, Greenleaf's Evid., Part III, vol. 1. Vide also, 1 Whart. Crim. Law, sec. 796, 797, 798, and notes.

Taylor, in his work on Evidence, treats very briefly on the subject of defect of religious faith. After citing Green-leaf for the general proposition that defect of religious belief is never presumed, and the burthen of proof is on the objecting party, he remarks : “ One mode, and perhaps the least objectionable mode, of proving that. a witness is incompetent to take an oath on the ground of want of religious belief, is by furnishing evidence of his atheistical declarations previously made to others, but the witness may himself be interrogated upon the subject, either before he is sworn at all, or after he has been sworn upon the voir dire, or even, as it would seem, after having been sworn in the cause.” 2 Taylor’s Evidence, p. 1201, 1250. These eminent writers concur in the general rule as to the best mode, of ascertaining the competency of a witness objected to for want of religious belief, but differ as to its exceptions. It is the province and duty of the Judge to decide all questions respecting the admissibility of the evidence.

This admissibility depends often upon a disputed fact, which it is for the Judge alone to determine. The