No. 2332 | D.C. Cir. | Jan 2, 1912
Lead Opinion
delivered the opinion of the Court:
The appellant, Perri W. Frisby, hereafter for convenience referred to as defendant, was indicted in the supreme court of the District of Columbia for the forgery of a certain written instrument purporting to be a contract for the sale of real estate. This paper was originally produced by defendant as an exhibit to his answer in a suit in equity, in which cause he also testified as a witness in his own behalf. It was after the ah leged forged instrument had been exhibited in the equity pleading and defendant had testified in said cause that he was in-dieted for forging the instrument.
At the time the instrument was filed, sec. 860, U. S. Rev. Stat. U. S. Comp. Stat. 1901, p. 661, was in force in this District. It was as follows: “No pleading of a party,, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or
On trial the contract, as it appeared in the equity cause, together with certain portions of defendant’s evidence in that proceeding, was admitted in evidence against the accused over the objection and exception of his counsel, who contended that defendant could not be deprived of the immunity granted by sec. 860, supra, and that the repealing act was, as to him ex post facto legislation, and therefore void. This is the sole question presented on this appeal.
It is not always an easy task to determine just when a statute is ex post facto in its application to a given case. The provision of the Federal Constitution forbidding the enactment of ex post facto laws (art. I, sec. 9, cl. 3), has called forth a vast volume of opinion by the Federal and state courts. In the early case of Calder v. Bull, 3 Dall. 386, 1 L. ed. 648, the court defined an ex post facto law as follows: “1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was when commited. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed. 4th. Every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the time of the commission of the offense, in order to convict the offender. All these, and similar laws, are manifestly unjust and oppressive.”
It will be observed from the above definition that a law to be ex post facto must be one that deprives the person accused of crime of a substantial right in which he was protected and granted immunity by the law in force at the time of the com.mission of the offense. In other words, any statute is held to be ex post facto “which by its necessary operation and in rela
It is well settled, however, that the general rule that laws regulating mere matters of procedure are not ex post facto is subject to numerous exceptions. The word “procedure,” as a legal term, has a most indefinite meaning. The leading law dictionaries do not attempt to define it. Bishop in his work on Criminal Procedure, sec. 2, says: “The term ‘procedure’ is so broad in its signification that it is seldom employed in our books as a term of art. It includes in its meaning whatever is embraced by the three technical terms, pleading, evidence, and practice.” The same author defines “practice” as meaning “those legal rules which direct the course of proceeding to bring parties into court, and the course of the court after they are brought in.” In Kring v. Missouri, 107 U.S. 221" court="SCOTUS" date_filed="1883-04-18" href="https://app.midpage.ai/document/kring-v-missouri-90760?utm_source=webapp" opinion_id="90760">107 U. S. 221, 27 L. ed. 506, 2 Sup. Ct. Rep. 443, Mr. Justice Miller, referring to the above definition of procedure, said: “If this be a just idea of what is intended by the word ‘procedure’ as applied to a criminal case, it is obvious that a law which is one of procedure may be obnoxious as an ex post facto law, both by the decision in Colder v. Bull, 3 Dall. 386" court="SCOTUS" date_filed="1798-08-17" href="https://app.midpage.ai/document/calder-v-bull-84695?utm_source=webapp" opinion_id="84695">3 Dall. 386, 1 L. ed. 648, and in Cummings v. Missouri, 4 Wall. 277" court="SCOTUS" date_filed="1867-01-14" href="https://app.midpage.ai/document/cummings-v-missouri-87778?utm_source=webapp" opinion_id="87778">4 Wall. 277, 18 L. ed. 356; for in the former case this court held that ‘any law which alters the legal rules of evidence, and receives less or different testimony
Even conceding that the changes wrought in the status of the defendant by the repealing statute relate alone to procedure, that is not of itself sufficient to warrant an affirmance of the judgment, if it appears that he has been deprived of a substantial right which amounted to an immunity at the time the offense was committed.
With these general rules and their exceptions before us, what is the situation of this' defendant ? “Forgery, at the common law, is thé false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability.” 2 Bishop, Crim. Law, sec. 523. To constitute the crime of forgery three things must exist: “There must be a false making or other alteration of some instrument in writing; there must be a fraudulent intent; and the instrument must be apparently capable of effecting a fraud.” Clark, Crim. Law, sec. 118. Our Code defines the crime as follows: “Whoever, with intent to defraud or injure another, falsely makes or alters
Intent in forgery will not be presumed from the mere making of a false instrument. It must be gathered from some affirmative act or from the existence of circumstances from which criminal intent may be inferred. No such circumstances were present in this case; hence criminal intent could not be imputed to defendant until he uttered the instrument by incorporating it in the pleadings in the equity cause. The utterance, therefore, was essential to establish the commission of the crime charged. To find the existence of an essential element of the crime — in fact, to find the crime itself — the government was compelled to search the record in the equity proceeding. Without it, the crime of forgery could not have been established or even charged against the defendant. It is true that defendant committed the crime of forgery before he incorporated the instrument into the equity pleading, and its utterance was only the disclosure of the criminal intent which existed concealed in his mind when he made it. But the record in the equity case does not serve the mere" purpose of amplifying the evidence already existing of the commission of the crime; it furnishes not only the sole evidence of intent, an essential element of the crime itself, but the complete disclosure of the
Under the existing law the utterance of the forged instrument, and the disclosure of the complete crime of forgery by means of the pleading in a civil suit, did not constitute a crime for which the defendant could be punished, unless it could be established without reference either to the pleadings or evidence of the defendant in the equity case. It is not contended that the crime charged could have been established upon any theory independent of such reference. Had witnesses been produced to prove that the signatures to the contract were all in the handwriting of defendant, they could have testified only to information gained from a reference to the instrument itself as it appeared in the equity pleading. Such reference was expressly forbidden by the statute. Any use of defendant’s testimony in the civil proceeding was also forbidden. Witnesses could not have been produced to testify to the substance of defendant’s testimony in the equity case, since the immunity granted by the statute extended to both the pleadings and evidence in the civil suit. The immunity granted by the statute is comprehensive. It forbids the use of such evidence or pleadings “in any manner” against the defendant “in any criminal proceeding,” except for perjury. If the instrument was a forgery, defendant clearly subjected himself in the equity proceeding to a criminal prosecution for the crime of perjury, the only crime chargeable under the statute.
To sustain this conviction would be equivalent to holding that the repealing statute changed an unpunishable forgery, because of the source of its disclosure, into a punishable forgery. Before the act, defendant, by existing law, was granted absolute immunity from any criminal prosecution growing out of disclosures made by him in the civil proceeding, except for perjury. After the act, it is contended that the immunity no longer exists, and he is liable to answer for another crime, which we must assume but for the immunity would never have been
Under the inducement of the existing law, defendant placed in the hands of the prosecution something which could not be used against him or made the basis of the present case, but which, by the repealing act, it is insisted was made competent evidence to establish the crime charged. It must be remembered that this is not an instance of merely increasing the number of witnesses to prove the same case that formerly existed, as in Hoyt v. Utah, 110 U.S. 574" court="SCOTUS" date_filed="1884-03-03" href="https://app.midpage.ai/document/hopt-v-people-of-territory-of-utah-91057?utm_source=webapp" opinion_id="91057">110 U. S. 574, 28 L. ed. 262, 4 Sup. Ct. Rep. 202, 4 Am. Crim. Rep. 417, or of changing the method of proving an existing fact, as in Thompson v. Missouri, 171 U.S. 380" court="SCOTUS" date_filed="1898-05-31" href="https://app.midpage.ai/document/thompson-v-missouri-94922?utm_source=webapp" opinion_id="94922">171 U. S. 380, 43 L. ed. 204, 18 Sup. Ct. Rep. 922. In each of those cases the evidence made competent by statutes enacted after the commission of the crime (murder in each instance) was of so little consequence as proof, that former convictions had been secured and the death penalty imposed in both cases, without the evidence legislated into existence being used until the second trials. The statute here took the thing upon which the charge of the commission of the crime was predicated, which defendant had placed in the hands of the prosecution before indictment, raider tbe protection and immunity afforded by tbe existing law, and made it the chief instrument in encompassing his conviction. Can it be said that defendant’s situation had not been changed to his disadvantage by the enactment of the repealing act ? We think not.
The judgment is reversed, and it is so ordered. Reversed.
Dissenting Opinion
dissenting:
I find myself unable to concur in reversing the judgment in this case.
Changing a rule of evidence merely, the repealing section did not alter, add to, or diminish the ultimate facts necessary to establish the guilt of the appellant. Having no relation to the amount or degree of proof essential to conviction, it did nothing more than remove a restriction upon the competency of certain evidence. The conditions shown bring the case entirely within the principle declared by the Supreme Court in cases the authority of which has not been limited or impaired in any later decision. Hopt v. Utah, 110 U.S. 574" court="SCOTUS" date_filed="1884-03-03" href="https://app.midpage.ai/document/hopt-v-people-of-territory-of-utah-91057?utm_source=webapp" opinion_id="91057">110 U. S. 574-589, 28 L. ed. 262-268, 4 Sup. Ct. Rep. 202, 4 Am. Crim. Rep. 417; Thompson v. Missouri, 171 U.S. 380" court="SCOTUS" date_filed="1898-05-31" href="https://app.midpage.ai/document/thompson-v-missouri-94922?utm_source=webapp" opinion_id="94922">171 U. S. 380-387, 43 L. ed. 204-207, 18 Sup. Ct. Rep. 922. As shown in Thompson's Case, the statute declared ex post facto in Kring v. Missouri, 107 U.S. 221" court="SCOTUS" date_filed="1883-04-18" href="https://app.midpage.ai/document/kring-v-missouri-90760?utm_source=webapp" opinion_id="90760">107 U. S. 221, 27 L. ed. 506, 2 Sup. Ct. Rep. 443, took from the defendant a complete defense against the charge of murder in the first degree. It was more than a change of procedure affecting the competency of evidence; it operated to increase the degree of crime. The following language of Mr. Justice Harlan, who delivered the opinion of a unanimous Court in Thompson's Case, is, in my judgment directly applicable to the conditions here presented: “If persons excluded, upon grounds of public policy, at the time of the commission of an offense, from testifying as witnesses for or against the accused, may, in virtue of a statute, become competent to testify, we cannot perceive any ground upon which to hold a statute to be ex post facto which does nothing more than admit evidence of a particular kind in a criminal case upon an issue of fact which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed. * * * The statute did nothing more than remove an obstacle arising out of a rule of evidence that withdrew from the consideration of the jury testimony which, in the opinion of the legislature, tended to elucidate the ultimate essential fact to be established; namely, the guilt of the accused.”
I cannot concur in the contention that the section was practically an offer of immunity, of the benefit of which the appellant cannot be deprived by its repeal. Immunity statutes are intended to compel the production of evidence that would, without their protection, tend to show that the witness had committed a crime. See 27 Stat. at L. 443, chap. 83, U. S. Comp. Stat. 1901, p. 3173. Brown v. Walker, 161 U.S. 591" court="SCOTUS" date_filed="1896-03-23" href="https://app.midpage.ai/document/brown-v-walker-94410?utm_source=webapp" opinion_id="94410">161 U. S. 591, 40 L. ed. 819, 5 Inters. Com. Rep. 369, 16 Sup. Ct. Rep. 644. In this case the appellant pleaded the forged instrument in his own interest and under no compulsion. In so doing he was protected by the section while it was in force, but he took the risk, as did Hopt and Thompson in the cases cited, that the rule of evidence might subsequently be changed. It is true that the forged instrument was uttered when set up in his answer in the civil suit, and it may be conceded, for the sake of the argument, that it could not be offered in evidence against him in a prosecution for uttering the instrument. But that question is not involved and need not be discussed. Forgery, and uttering a forged writing, are separate and distinct offenses by the terms of section 843 of the Code [31 Stat. at L. 1326, chap. 854], which, in that respect, follows the common law. It is forgery to falsely make or alter any writing of a public or private nature with intent to defraud or injure another. The offense is complete when the writing shall have been falsely made or altered with that intent. Uttering the forged writing is not an ingredient of the offense. It is not perceived that proof of utterance is
Convinced that the trial court did not err in admitting the writing in evidence, I must dissent from the conclusion of my brethem.