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4 Funk vs. United States. fying in any civil action, with certain exceptions, because ne as a party to or interested in the issue tried; and that in 187 ; (e 37, 20 Stat. 30) Congress made the defendant ia any crimina case a competent witness at his own request. The opinion then continues (p. 337) ; ‘*Legislation of similar import prevails in most of the States The spirit of this legislation has controlled the decisions 0 the eourts, and steadily, one by one, the merely technical arriers which excluded witnesses from the stand have been removed, till now it is generally, though perhaps not universally, true that no one is excluded therefrom unless the lips of the originally adverse party are closed by death, or unless some one of those eevde te iy confidential relations, like that of husband and wife, forbi e@ breaking °F at Saterest and being party to the record do not ex- a defenda: ton trial from the witness stand, upon what rea- iota anvenire nai erg not on trial, be adjudged incompetent’ That case was decided December 5, 1892. Twenty-five years later this court had before it for consideration the case of Rosen v. United States, supra, Rosen had been tried and convieted in a federal district court fer conspiracy. A person jointly indicted with Rosen, who had been convicted upon his plea of guilty, WAS cafied as a witness by the government and allowed to testify over Rosen’s objection. This court sustained the competency of the witness. After saying that while the decision in the Reid case had not been specifically overruled, its authority was seriously shaken by the decisions in both the Lagan and Benson cases, the court pro- ceeded to dispose of the question, as it had been disposed of in the Benson case, “‘in the light of general authority and sound reason, “In the almost twenty [twenty-five} years,’’? the court said, ‘“which have elapsed since the decision of ‘the Benson Case, the disposition of courts and of legislative bodies to remove disabili- ties from witnesses has continued, as that decision shows it had been going forward before, under dominance af the eonvietion of our time that the truth is more iikeiy to be arrived.at by hearing the testimony of all persons of competent understanding who may seem to have knowledge of the facts involved in a case, leaving the eredit and weight of auch testimony to be determined by the jury or by the court, rather than by rejecting witnesses as incompetent, with the result that this principle has come to be widely, almoat universally, aceepted in this country and in Great Britain. — “Since the decision in the Benson Case we have significant { Funk vs. United States. 5 evidence of the trend of congressional opinion upon this subject in the removal of the disability of witnesses convicted of perjury, Rev, Stats., § 6399, by the enactment of the Federal Criminal Code in 1909 with this Provision omitted and § 5399 repealed, This is significant, because the disability to testify, of persona con- vieted of perjury, survived in some jurisdictions much longer than many of the other common-law disabilities, for the reason that the offense concerns directly the giving of testimony in a court of justice, and conviction of it was accepted as showing a greater dis- regard for the truth than it was thought should be implied from 4 conviction of other crime. “* Satisfied as we are that the legialation and the very great weight of judicial authority which have developed in support of this modern rule, especially ag applied to the competency of witnesses convicted of crime, proceed upon sound principle, we conclude that the dead hand of the common-law rule of 1789 should no longer be applied to anch cases as we have here, and that the ruling of the lower courts on this first claim of error ehould be approved.” Tt is well to pause at this Point to state a little more concisely what was held in these cases. It will be noted, in the first place, that the decision in the Reid case was not based upon any express statutory provision. The court found from what the congressional legislation omitted to say, as well aa from what it actually said, that in establishing the federal courta in 1789 some definite rule in respect of the testimony to be taken in criminal eases must have been in the mind of Congress; and the rule which the court thought ‘was in the mind of that body was that of the common law as it existed in the thirteen original states in 1789. The Logan case in part rejected that view and held that the controlling rule was that of the common law in force at the time of the admission of the state in which the particular trial was had. Taking the two cases together, it is plain enough that the ultimate doctrine an- nounced is that in the taking of testimony in criminal Cases, the federal courts are bound by the rules of the common law as they existed at a definitely specified time in the Congress has otherwise provided. | With the conclusion that the controlling rule is that of the common law, the Benson case and the Rosen ease do not. conflict ; but both cases reject the notion, which the two earlier ones seen to accept, that the courts, in the face of greatly changed conditions, are still chained to the ancient formulae and are powerless to declare and enforce modifications deemed to have been wrought in : bee a TeSPeClive states, uniess