5 Ohio 1 | Ohio | 1831
Hess, the plaintiff in error, was indicted in the court of .common pleas, jointly with one Hoyt, upon several charges :
1. For feloniously selling and delivering to one Steele a counterfeit bank note, purporting to be a check from the Bank of the United States branch at Cincinnati upon the Bank of the United States, signed J. Reynolds, president, and P. Benson, cashier, for five dollars, and payable to order, knowing it to be counterfeit.
2. For the feloniously selling and delivering to Steele a counterfeit note, purporting to be a twenty-dollar note issued by the Bank of the United States, payable to order, and signed by H. *Biddle, president, and W. McIlvaine, cashier, knowing it, to be counterfeit.
3. For having in possession, for the purpose of'selling, etc., divers counterfeit notes, viz: two twenties, purporting to be of the Bank of the United States, issued by H. Biddle, president, and W. McIlvaine, cashier, and payable to order; and a five-dollar check from the United States branch at' Cincinnati upon the Bank of the United States, and signed J. Reynolds, president, and P. Benson, cashier, and payable to order, knowing them to be counterfeit.
The first two charges were framed upon that clause of section 29 of the act for the punishment of crimes, vol. xxix. 141, which provides a punishment for any person who “ shall sell, barter, or in any manner dispose of any false, forged, or counterfeit bank note or notes.” The third charge is framed under that clause of the same section providing punishment for any person who “shall be detected with any such bank-notes in his possession, for the purpose of selling, bartering, or disposing of the same.”
During the trial of this cause, several bills of exception were
1. Upon the trial, one Gano was called as a witness for the .prosecution to prove the counterfeit character of the twenty-dollar notes. He testified that he had never seen the president or cashier write, but was a teller in the Cincinnati branch, and had frequently seen notes, letters, etc., received in the branch bank as genuine, with their signatures. He was then allowed to give his opinion to the jury that the notes were counterfeit.' In this the prisoner claims the court erred. It is esteemed settled law that persons of skill may give their opinions, in evidence, in criminal cases, whether the particular handwriting'on the instrument alleged to be forged is not true and genuine or forged and imitated, ^because it is said a judgment upon such points may be formed' by habit and experience. 2 Stark. Ev. 570-586; Peake Ev. 35; 4 Esp. Cas. 117.
2. The same witness was" called for the prosecution, and permitted to testify to the counterfeit character of the five-dollar checks, issued at Cincinnati. This was objected to, because better evidence was within- reach of the power of the court, the president and cashier residing in an adjoining county. In admitting this evidence, the prisoner alleges the court' erred. In England, a witness; whose name appears upon forged paper, and who is interested in setting aside the instrument, is not permitted to give evidence to prove the fact of forgery, though such person is held a competent witness to prove all collateral matters on the trial. 3 Stark. Ev. 584, 585; 2 N. R. 88; 2 Leach 987; 2 East, C. L. 995. But this is held not to extend to cases where the witness has no real interest in the conviction; thus the cashier of a bank, or other mere agent, may be called to prove the signature to a bank note not to be his, because he is, in fact, a mere indifferent party, who has no interest of his own. 1 Leach, 311; 3 Ch. C. L. 1043. But although you may call the agent, etc., you need not unless you please. 2 Stark. 585. The English rule that excludes a party whose name is forged from testifying to establish the forgery,
3. Again, it is urged the bills offered to the jury varied from those described in the indictment, and so were improperly admitted’to the jury. The variances now relied upon are: 1: In the signature of the president oí the bank, the indictment describing' a note signed H. Biddle, and the notes offered in evidence, bearing the name N. Biddle affixed to them. 2. That the note’s offered to the jury were indorsed in these words, “ pay the bearer, Thos. Wilson;” whereas the notes described in the indictment were not described as having any indorsement thereon. As to the-first variance, the bill of exception shows that the court decided,, that according to their judgment, the letter before Biddle, in the signature of the notes offered, was H., not N. The notes are not. returned with the record, and we have no means of determining whether the court erred in judgment or not. It may be proper, however, to say in reference to this objection, that if the court did err., it was as to. a matter of fact, and not of law. The question was properly, submitted to the court to determine upon, as preliminary to the sending the notes to the jury; and the record-shows their opinion to be, the letter was H., not N. How can we revise this opinion? Certainly not without the evidence was submitted to us — even if we then have a legal right to correct errors
The omission to describe the indorsement on the note, and the appearance oí the words, “pay the bearer, Thos. Wilson,” on the back of the note, does not, in our opinion, present a question of variance. The indictment charges the defendant with having in possession divers counterfeit notes, *and then sets out the face of the notes. The indorsement is not alluded to at all.. The note might be counterfeit, and the indorsement genuine. The indorsement is not more a part of the note than the number, the figures an the margin, or the water-marks, and they need not be set out. Even in an indictment for forging a promissory note, the indorsement need not be set out, for it is no part of the note. 2 Mass. 393-397; 1 Mass. 62, 203. Neither shall it be required to set these things forth in an indictment for having them in possession. The variance objected to is not perceived. Other objections are made in the bill of exceptions,- as that in the motto, alleged in the indictment to be “pruribua unum,” when on the note the words are •‘pliiribus unum.” But these are not assigned for error, and are clearly of no consequence.
4. On the trial, the prosecutor, “to prove the guilty knowledge oí the defendant, with respect to the bank notes described in the indictment,” called a witness to prove that throe days after the arrest of the prisoner, and while he -was in jail, he found in an 1 auger hole bored in a log of a house, within a few feet of the dwelling of the defendant, and which had formerly been his dwelling) two bank bills, which he produced; and the prosecutor claimed they were counterfeit, and they were suffered to go to the jury; .and also called another witness, who stated that the evening after the defendant was arrested, he, the witness, went to his dwelling house, and took from the hands of his wife, a purse, which she said ■belonged to her little boy, which contained sixty dollars of counterfeit bank notes, which being produced, were suffered to go to the jury. In these instances it is objected that the court erred also; and that as to both matters the testimony was improper; .and in the last, in permitting the statement of the wife to be given
5. It is objected to the arraignment and trial of the defendant,
*6. I will now consider the objections urged to the sufficiency of the indictment. The first has been considered in the
The next objection urged is, that the notes set forth are made payable to order, and are not alleged to have been indorsed, and so were not currency. I have before shown that, upon the authorities, the indorsement is not considered in law any part of the note. 1 Mass. 62, 203; 2 Mass. 373, 379. It is of no consequence, even in forgery, whether the counterfeited instruments be such as if real would be effectual to the purpose it intends, so long as .there is sufficient resemblance to impose on persons of ordinary observation, though persons of experience could not be deceived by it. 3 Ch. C. L. 1035; 2 Stark. Ev. 579. The next objection is, that these notes are charged in the indictment to have been feloniously made, when the statute makes the offense a misdemeanor. The statute does in terms declare the person offending shall be guilty of a misdemeanor. The attorney, in drawing this indictment, has introduced this word from the English forms. It seems to us to have no application in describing the offense set forth in the indictment, and that it may be rejected as mere surplusage, its presence doing neither good nor harm. If feloniously supposed in the accused greater moral turpitude than is necessary to ■constitute a misdemeanor, this jury have found it in this case, and the .greater must include the lesser guilt.
I have, I believe, waded through all the objections taken for the plaintiff in error. In this no aid has been given by counsel on either side; neither abstract nor brief of argument has been given us. While courts should take care that persons accused of crimes are secured in all their legal ^rights, it is due to the community to see that those substantially charged with crimes, and found guilty,'shall not escape punishment by reliance upon technicalities and forms, multiplying the chances of escape, and holding out the prospect of impunity to guilt as an inducement to venture the commission of crime. We see no error in the proceedings of the court in the case before us.