1 Binn. 273 | Pa. | 1808
This is an indictment against the defendants for felony in stealing a bill obligatory for 1751- from Philip Messinger to Jesse Cleaver, assigned by Cleaver to Henry Abel-
On the trial of the cause two points were reserved for the consideration of this court.
1. Whether parol evidence was admissible to prove the contents of the bill obligatory described in the indictment, without having given notice to the defendants or one of them, in whose hands it was, to produce it at the trial.
2. Whether the taking of one bill obligatory is punishable as a larceny, under the act of 5th April 1790, section 5.
As to the first point, the law seems to be settled in England., that with respect to proving the contents of writings by parol evidence, there is no difference between civil and criminal cases You are to produce the best evidence that the nature of the case admits of. The paper itself, if in existence, and in the •power of the prosecutor, is to be produced; but if it is in the hands of the defendant, notice must be served on him, or Hs
So far as relates to all papers, but that which is the subject of the larceny, I fully concur with the principle above mentioned; but with respect to the paper which has been stolen, a different rule has been followed in Pennsylvania. It has been usual to prove the contents of paper bills of credit, before the American revolution, and of bank notes since, without giving notice to the defendant to produce them. I am induced to follow this rule the more readily, because no injury can result from it to the defendant. He is informed by the indictment, in what manner the paper in his possession is described, and if it is not truly described, he has it in his power to shew it. This in effect is notice; and I think it is for the interest of the defendant to have it so considered. The court have no power to compel him to produce the paper; and the very circumstance of giving him actual notice to produce it may, in case of' his not complying, make an impression to his prejudice in the minds of the jury. With regard to other papers, the case is very different. Not being the immediate subject of the prosecution, the defendant may be taken’ by surprise, having no reason to suppose that they will be brought into question. It is proper therefore in such cases, that no evidence but the paper itself shall be received, unless the defendant having received notice declines producing it. I am therefore of opinion that in the case before us, the parol evidence was properly admitted.
The second point turns on the fifth section of the act of 5th April 1790. It is thereby enacted that “ robbery or larceny “ of obligations or bonds, bills obligatory, bills of exchange, “ promissory notes for the payment of money, lottery tickets,. “ paper bills of credit, certificates granted by or under the au- “ thority of this Commonwealth, or of all or any of the United “ States of America, shall be punished in the same manner as “ robbery or larceny of any goods or chattels.”
The obvious intent of this law appears to be, to put bonds, with respect to larceny, on the same footing as goods or chattels. They are made the subject of larceny, which they were
The statute 32 H. 8. c. 9. forbids the purchase of any pretended rights or titles. In the case of Partridge v. Straunge and Croker, which was an action of debt on this statute, 6 and 7 Ed. 6. Plowd. 86. Justice Hales gave his opinion, which was not contradicted by the rest of the court, that the purchase of one pretended right was an offence against the statute, although the words.are in the plural number. The statute 23 H. 8. c. 1. takes away the benefit of clergy from persons who wilfully burn any dwelling houses, or rob any churches or chapels; My Lord Hale takes it for granted, that the burning of one dwelling house, or robbery of one church, is within the purview of this statute. 2 H. H. P. C. 365.
By statute 2 G. 2. c. 25. s. 3. it is enacted that u if any person “ shall steal or take by robbery any bank notes, bonds, bills, “ promissory notes for the payment of any money,” See. &c. “ notwithstanding any of the said particulars is termed in law u a chose in action, he shall be deemed guilty of felony of the “ same nature, and in the same degree &c. in the same manner “ as it would have been if the offender had stolen or taken by “ robbery any other goods of like value” &c. It was determined in Hassell’s case that the stealing of a single bank note is within the statute. 2 East. Cr. Law. 598. 1 Leach 1. S. C.
By act of Assembly 22d April 1794. s. 5. any person who shall be convicted of printing, signing, or passing, any counterfeit notes of the banks of Pennsylvania, North America, or the United States, shall be punished as is therein prescribed. It has never been doubted that the printing of one counterfeit note is an offence within this act.
Indeed the counsel for the defendant confess that if the expression in the act in question had been any bonds &c. the construction must have included one bond, because they say the word any is put in opposition to none. But the word any may
Upon a full consideration of the words of the act of Assembly, and of all the authorities which bear upon the point, I am of opinion that the felonious taking of the bill obligatory charged in the indictment, is punishable as a larceny.
The first question to be considered, is whether the admission of parol evidence on the trial of this indictment, respecting the bill obligatory alleged to have been stolen, was erroneous, no notice having been previously given to the defendant to produce it. The general rule is
The next question is, whether the stealing of one bill obligatory is a felony punishable by the act of Assembly passed April ,5th 1790. I fully assent to the established principle, that penal laws are to be construed strictly, and that they are not to be carried beyond their letter. I also am disposed to concur with Dr. Burn, who asserts, when speaking of the stat. 10 Geo. 3. c. 18. (the words whereof are, “ if any person shall steal any dog “ or dogs of any kind or sort whatsoever, he shall forfeit for the “■ first offence a sum not exceeding 301. nor less than 20/.”) that it might be doubtful, whether upon this act it is penal to steal a bitch,
So far then as the section applies to the case under consideration, it will read thus. “ Larceny of bills obligatory shall be punished in the same manner, as larceny of any goods or chattels.” Of the proper signification of the term any, there is no dispute. Its natural sense seems to be settled by
This was an indictment under the act of Assembly which provides “ that robbery or larceny of obliga- “ tions or bonds, bills obligatory, bills of exchange, promissory “ notes for the payment of money, lottery tickets, paper bills of “ credit, certificates granted by or under the authority of this
It would seem an absurdity to expect the accused to produce a thing which he was alleged to have stolen; or to say that we should not establish the identity but by the thing itself: that we should not prove the value or the colour of a piece of cloth, until notice had been given to produce the article. “Take notice “ that proof will be given of the bay horse charged in the indict- “ ment, on your refusal to produce him at the trial;” or, “ take “ notice that you produce that paper at the trial, with stealing “ which you are charged, otherwise evidence will be given of its “ contents.” I take it that it would be a sufficient answer to the exception, that it is inconsistent with the charge of feloniously taking, to suppose that the accused would furnish any evidence. It is presuming that he has a thing in his possession, which he is charged with stealing. I admit there is no difference between criminal and civil cases in this respect; and I take it that in an
In the above case the declaration stated the bill of exchange, describing it as drawn by John Harrison, on Robert and Thomas Harrison, in favour of Thomas Betitly, and by him indorsed to the plaintiff in the usual form. This is to be remarked; as in a case where the opinion of Lord Kenyon was afterwards quoted as an authority before the Court of Common Pleas on this very point,
If we examine the cases in the books which have been referred to, or which bear upon the point, we shall find that they are oases of evidence of something in the possession of the party
It did not necessarily follow, nor indeed can we say that it ought to have been expected by the defendant in this case, that the allegation of fraud would be set up, and that evidence would be offered of the memorial of the conveyance, or of the conveyance itself in this case. It had become matter of evidence in consequence of evidence that had been given, rebutting or repelling evidence in the cause, all which may be unexpected by the person against whom it is produced.
I take it therefore that in the case before us, on general principles, and under the circumstances of the case, the evidence was admissible.
The reason in arrest of judgment comes now to be considered; that the act of Assembly specifies the robbery or larceny of obligations or bonds, bills obligatory, &c. but not of a bill, which was the charge in the indictment in this case. There could be no good reason with the legislature for not making the larceny
By Lord Hale, 1 Pl. C. 365. the doubt was not singly because the statute of 1 Ed.V I. was in the plural number, “horses, “mares, or geldingsfor then it might as well have been adoubt whether upon the statute of 23 Hen. VIII. cap. 1. he that had wilfully burned one house should not have had his clergy, because the words in that statute are in the plural number, dwelling houses or barns. But the reason that made the scruple was, because the statute of 37 H. 8. cap. 8. was expressly penned in the singular number, “ if any man would steal any horse, “ mare or filly:” and then this statute of 1 Ed. VI., thus varying the number, and yet expressly repealing all other exclusions of clergy introduced since the beginning of Henry 8., made some doubt whether it were not intended to enlarge clergy where only one horse was stolen. To remove this doubt the statute of 2 and 3 Ed. VI. cap. 33. was passed, whereby clergy is excluded from him that steals one. horse, gelding, or mare.
The doubt would seem to have originated in the humanity of the Judges, feeling the sanguinary nature of th? code which
The effect of the word any in the construction of the statute against selling pretended rights and titles, is noticed in Partridge’s case, 1 Plow. 86. Hales J. says that a pretended right and title in the singular number is within the penalty of the statute; for the plural number contains in itself the singular number and more; and if one right or title should not be contained here, the effect of the statute would be set aside; and also every right or title is contained in the last branch by this word any, and therefore for this reason a right or title in the singular number is within the statute.
In the act of Assembly in this state entitled an act against removing of land marks, 1 St. Laws. 5. the word any is used: “ That no person in this province, or counties annexed, shall “ cut, fell, alter, or remove, any certain boundary tree, or other “ allowed land mark.” And in an act entitled an act against effacers of charters, the word any is used: “ That whosoever shall “ forge, deface, corrupt, or embezzle, any charters, gifts, grants, “ bonds, bills, wills, conveyances or contracts, shall” &c. In the first act the word any is used with the singular word tree or land mark; and in the second act with the plural words charters, gifts, &c. indifferently. Would it not seem from hence that the use of the word was not so marked by them as to be of much import in construing their acts?
But if the word any is of such effect provided it is found somewhere attached to the plural words or can be referred to them, we have it here in the very same section and selfsame sentence in which the subject of the larceny is specified, and the penalty affixed: “ Robbery or larceny of obligations, &c. “ shall be punished in the same manner as robbery or larceny of “ any goods or chattels.” That is, as robbery or larceny of any
But even on the ground of strict construction, I distinguish materially between stealing obligations, and stealth of obligations. The word of (in the Gothic and Anglo-Saxon af) means consequence, offspring. 1 Ep. Pter. 299. The word concerning is used to explain it; we say of and concerning, and of or concerning; so that larceny of obligations, means larceny concerning obligations, that is, that species of property which comes under the head of obligations. This I take to be the meaning of the words in so plain and obvious a construction as to render them impossible to be mistaken; and notice of the off- nee to all whom it may concern, to what extent punishable, is the principle which ought to govern the construction. I do not think, therefore, it would be justifiable to arrest the judgment in this case.
New trial refused, and judgment for the Commonwealth.
Peace’s Compend, 70. 71.
M‘Nal. Evid. 348, 350.
4 Burr. 2489.
1 Burn’s Fust. 497.
1 Bl. Com. 87.
2 H. H. P. C. 365.
2 H. H. P. C 344
2 East's Crown Law, 592
Leach. C. L. 1. JLassel’s case. 2 East’s C. L. 598.