OPTIONAL: People v. Howard, 17 Cal. 63, 1860 WL 1000 (Cal. 1860)

This case from the 1800s shows how categorical “competence” rules based on race were used to keep witnesses out of court.

FIELD, C. J., delivered the opinion of the Court--BALDWIN, J., concurring.

The defendant was convicted of the larceny of a gold watch belonging to a person of half negro blood, and the testimony of the negro was offered to establish the fact that the property was taken from him without his knowledge or consent. The question for consideration is, whether, in a criminal action against a white man, a black person--a mulatto in the present case--is a competent witness, where he is the injured party. By injured party, is meant the person who is the immediate and direct sufferer from the offense committed. The question presented must have its solution in the construction of certain provisions of the act concerning crimes and punishments. The thirteenth section of that act provides that, “the party or parties injured shall, in all cases, be competent witnesses;” and the fourteenth section provides that “no black or mulatto person, or Indian, shall be permitted to give evidence in favor of or against any white person.” This latter section, in our judgment, creates an exception to the general rule declared in the preceding one. The connection of the two sections, one following the other, leads us to that conclusion. The party injured may testify, in all cases, subject to this exception, that a black or mulatto person shall not be permitted to appear for or against a white person.

It is possible, as suggested by the District Attorney, that instances may arise where, upon this construction, crime may go unpunished. If this be so, it is only matter for the consideration of the Legislature. With the policy, wisdom, or consequences of legislation, when constitutional, we have nothing to do.

*65 The judgment must be reversed, and the cause remanded for a new trial. Ordered accordingly.

COPE, J. delivered the following dissenting opinion:

. . . The question is, whether the Legislature, after providing that the injured party shall, in all cases, be a competent witness, intended to except from the operation of that provision black and mulatto persons and Indians; and I see no reason in law or policy upon which such an interpretation can be based. The former of these provisions is entitled to a liberal and equitable interpretation, while the latter must be strictly construed, and its operation confined within the narrowest limits which can be assigned to it upon any reasonable hypothesis of the intention of the Legislature. This being the rule of construction, as applicable to these provisions, I think that the latter cannot be regarded as a modification of the former; and that wherever a black or mulatto person or Indian is the injured party, he is a competent witness. Any other construction would, in many cases, result in an entire failure of public justice; and this is, no doubt, one of the consequences against which the Legislature intended to provide.

**2 I think the judgment should be affirmed.

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