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bo Funk vs. United States. In the Reid case, two persons had been jointly indicted for a murder committed upon the high seas, They were tried separately, and it was held that one of them was not a competent witness in behaif of the other who was first tried. The trial was had in Virginia; and by a statute of that state passed in 1849, if ap- plicable in a federal court, the evidence would have been com- petent. Section 34 of the Judiciary Act of 1789 declares that the laws of the several states, except where the Constitution, treaties or statutes of the United States otherwise provide, shall be re- garded as rules of decision in trials at common law in the courts of the United States in cases where they apply; but the court said that this referred only to civil cases and did not apply in the trial of criminal offenses against the United States. It was‘ conecded that there was no act of Congress prescribing in express words the rule by which the federal courts would be governed in the ad- mission of testimony in criminal cases. ‘‘But,’' the court said (p. 363), ‘‘we think it may be found with s indeed in direct terms, but by necessary implication, in the acta of 1789 and 1790, establishing the courts of the United States, and providing for the punishment of certain offences,'’ The court pointed out that the Judiciary Act regulated certain proceedings to be had prior to impaneling the jury, but contained no express provision concerning the mode of conducting the trial after the jury was aworn, and prescribed no rule in respeet of the testimony to be taken. Obviously however, it was said, some cer- tain and established rule upen the subject was necessary to enable ent certainty, not the courts to administer the criminal jurisprudence of the United States, and Congress mus. have intended to refer them to some known and established rule ‘‘which was supposed to be so familiar and well understood in the trial by jury that legislation upon the subject would be deemed superfluous. This is necessarily to be implied from what these acts of Congress omit, as well as from wha they contain.’’ (p. 365.) Tke court coneluded that thia could not be the common law as it existed at the time of the emi- gration of the eclonists, or the rule which then prevailed in Eng. land, and [therefore] the only known rule which could be sup- posed to have been in the mind of Congress was that which was in force in the respective states when the federal courts were es- tablished by the Judiciary Act of 1789. Applying this rule, it waa decided that the witness was incompetent. Funk vs. United States. 3 In the Logan case it was held that the competency of a witness to testify in a federal court sittimg in one state, was not affected by his convietion and sentence for felony in another state; and that the competency of another witness was not affected by his con- vietion ef felony in a Texas state court, where the witness had since been pardoned. The indictment was for an offense com- mitted in Texas and there tried. The decision was based not upon any statute of the United States, but upon the ground that the subject ‘‘is governed by the common law, which, as has been seen, wag the law of Texas at the time of the admission af Texas inte the Union as a State.’’ {p. 303.) . : We next consider the two cases upon which petitioner Féiea. in the Benson case two peraons were jointly indicted for murder. On motion of the government there was a severance, and Benson waa first tried. His eodefendant was called as a witness on behalf ot the government. The Reid case had been cited as practically decisive of the question. But the court, after pointing out what it conceived to be distinguishing features im that case, said (p. 335}, ‘We do not feel ourselves, therefore, precluded by that case from examining this question in the fight of general authority and sound resson.’? The alleged incompetency of the codefendant was reated upon two reasons, first, that he was interested, and second, that he waa a party to the record, the basis for the ex- clusion at connmon law being fear of perjury, ‘‘Nor,"’ the court said. ‘‘ were these named the only grounds of exclusion from the witness stand; eonviction of crime, want of religious belief, and other matters were held sufficient. Indeed, the theory of the common law was to admit te the witness stand only those pre- sumably honest, appreciating the sanctity of an oath, unaifeeted as a party by the result, and free from any of the temptations of interest. The courts were afraid to trust the intelligence of jurors. But the last fifty years have wrought a great change in these respects, and to-day the tendency is to enlarge the domain of campeteney and te submit to the jury for their consideration as to the eredibility of the witness those matters which heretofore were ruled sufficient to justify his exclusion. This change has been wrought partially by Jegislation and partially by jodicial con- struetion.’’ Attention then is called to the fact that Congress in 1863 had enacted that no witness should be excluded from teati-