49 N.J.L. 26 | N.J. | 1886
The opinion of the court was delivered by
The state alleged that the defendant, being a justice of the peace, had obtained money from the person named in the indictment by falsely pretending that there were three complaints against such person filed with him
At the trial, in the course of his defence, the defendant produced his docket and likewise three papers that purported to be such complaints as were referred to in the indictment, and being examined on his own behalf as a witness, stated that these documents were signed and sworn to by the person whose name was subscribed to them as prosecutor. The complaints thus proved were offered in evidence and were rejected by the court, on the ground that the best evidence of their authenticity had not been produced, such evidence, in the judicial estimation, being that of the prosecutor who had made such complaints and had put his name to them. This view was plainly erroneous. The testimony of the man who signed the documents, with respect to the genuineness of his signature, was not of a higher grade of evidence than the testimony of a man who had seen him make such signature or who was acquainted with his writing and deposed as to his opinion. The rule adopted by the court would require, in proving a promissory note or other unattested writing, the production of the maker of the instrument, to the exclusion of all other evidence, as primary proof. The rejection of these papers, under the conditions stated, was erroneous.
It is true that the papers in question were subsequently admitted in evidence, but such introduction was allowed only after the defendant had been obliged, by the ruling of the court, to call the person who had subscribed the complaints, and who was a witness hostile to the defence, and who by his testimony had cast suspicion upon the papers referred to. The substance of his testimony was to the effect that he could, not tell whether the signatures were his or not; that he had. never knowingly made such complaints, as he was friendly with the person against whom they purported to have been
The question of the amendability of the bill of exceptions is not necessarily involved in the present decision. The bill was amended at the instance of the state, and the case has been decided in favor of the defendant on the basis presented in the amended bill. In the absence of such emendation the facts would have made a case somewhat stronger for the defence. Our decision being adverse to the state taking the matter in this stronger aspect in favor of the prosecution, it is not necessary for the court to consider it in its weaker aspect. Nevertheless, as the matter is of importance in practice, and as it has been examined by the court, it has been thought proper to express our view upon the subject.
In this case the bill of exceptions, as originally signed and sealed by the Court of Quarter Sessions, stated that the three complaints already mentioned were rejected when offered by the defence, but it failed to state, as was proper, that they were afterwards admitted and placed before the jury. The state, giving notice to the defendant of the motion, applied to the Court of Quarter Sessions to amend the bill, so as to make it embrace the matter inadvertently omitted. The amendment was made and the legality of that act was challenged by the counsel of the defendant in his argument before this court. But the denial of the right to amend a bill of exceptions does not seem to be countenanced by any rule of practice or principle of jurisprudence. If such a power does not exist, such a condition of affairs is anomalous, and does not accord with the usual course when error has been discovered in the other parts of judicial procedure. Originally, at common law, it
This being the condition of the law with respect to the correction of judicial proceedings in these important respects, it seems difficult to suggest any reasonable ground on which it can be claimed that a bill of exceptions is exempt from such a beneficial control. If a mistake has been found in a bill of exceptions, why should it not be expunged and the statement rectified? In the case, in the Exchequer Chamber, of The Mersey Docks and Harbour Board, 7 H. & N. 339, this question was argued, and Chief Justice Cockburn, in the course of the argument, suggested as a reason why the power perhaps did not exist this consideration — he said: “If a judge is at liberty to amend a bill of exceptions after he has sealed it, it might happen that the bill of exceptions, when sealed, contained the real directions given to the jury, and any misdirection might be avoided by altering the bill of exceptions and inserting the direction which ought to have been given.” But if there is a probability that there would, in some cases, be danger that a judge would thus vitiate a bill of exceptions, is there not a similar danger with reference to the other parts