People v. Howell

4 Johns. 296 | N.Y. Sup. Ct. | 1809

Kent, Ch. J.

delivered the opinion of the court. The defendant was convicted at the last court of general sessions of the peace in this city, for forging the check of Benjamin Butler, purporting to have been drawn upon the merchants’ bank. The record has been removed into this court, and the counsel for the prisoner have raised two objections to the legality of the commitment.

1. That the prisoner was tried, against his consent, jointly with one Mitchell; 2. That Butler, who was admitted as a witness against him upon the trial, was incompetent, on the ground of interest.

1. It appears by the indictment, that the prisoner was indicted for forging an order for the payment of money. The check is set forth, in hæc verba, in the indictment, but it is denominated an order. The statute of 1808, made some alterations of the former law in respect to the punishment of forgery. The forging of deeds, promissory notes, and bills of exchange, is punishable with imprisonment for life, as before ; but the forging of orders for the payment of money, is now only to be punished with imprisonment for a term of years. A check is not, either in common parlance, or in the technical language of the books, called a bill of exchange or promissory note, though it may, in some respects, have the same legal operation. The statute, in discriminating between bills and notes, and orders for the payment.of money, must be interpreted according to the usual and settled understanding of those terms, and a check will therefore fall within the description of an order for the payment of money. It has been so understood by the public prosecutor in this case, and if the question- was otherwise doubtful, the classification given to the paper in the indictment ought to prevail over the other denomination of the instrument, as that would inevitably enhance the punishment. Penal statutes ought to be read according to the ordinary import of language, and if a term would equally admit of two constructions, the one attended with the milder consequences ought to be adopted. In this case, then, the prisoner was not entitled to his peremptory challenge, and consequently the force of the objection to his being tried jointly with Mitchell, is destroyed. In all cases, at least, where the right of peremptory challenge does not exist, and two persons are indicted jointly, they may be tried jointly or separately at the discretion of the court. This is the settled practice, both here and in England, and no objection to it exists sufficient to outweigh the public convenience of the rule.

2. The next objection is to the competency of Butler as a witness. The claim which the bank might have had. against him was released, and the interest, if any, which Butler had in supporting the charge of forgery, is supposed to arise from his being liable to Cooper, the nominal payee of the check. The ancient rule in England, that a witness, whose name was forged, was incompetent to prove the forgery on an indictment, because he was interested in the question, still prevails in their courts, and it was adopted by this court in the year 1794. The grounds or reasons of that decision are not before the public, and we therefore do not know them. It is probable that the court assumed the English rule as they found it then existing. But since that time, the question of interest in a witness has been investigated and defined with more precision, both in England and in this state. The rule now, in all such cases, and I believe I may say in almost all criminal cases, except in the case of a forged instrument, is, that the witness is to be received, if he be not interested in the event of the suit, so that the verdict could be given in evidence in an action in which he was a party. The interest which the witness may have in the question put, is no longer the test. That degree of interest goes only to the credit of the witness. The exclusion of the witness, in the case of forgery, has therefore now become an anomaly in the law of evidence, for it is certain that the conviction of the- party charged with forging a check, cannot be given in evidence in a subsequent civil suit on the check ; and as the reason of the old rule has ceased, by a sounder definition of the question of interest, and as it is not now applied to other criminal cases, it would seem to he fit and proper, that the rule itself should no longer be applied to the case of forgery. But the present case does not turn upon the validity of that rule, and there, fore the court do not now interfere with it. Assuming the rule to exist, according to the decision, in the case of Hamilton, in 1794, we are of opinion, that the interest of Butler was extinguished by the release from the bank. He was no longer answerable to Cooper upon the check, for that had been paid and satisfied by the bank. Cooper, by means of his agent, had received from the bank, the amount of the check, and had applied part of it to his private use, and transmitted the residue to this city, by means of the mail. The check was as much spent, as if it had slept for years afterwards on the files of the bank. It had completely performed its object. The subsequent recovery of a part of the money by the bank did not revive and give efficacy to the check. Cooper had his remedy against the bank, if they had unduly taken money out of his possession, but it gave him no remedy against Butler, any more than if any third person had received that money wrongfully from the possession of Cooper. If the bank had acted as the agent of Butler in receiving the money, he would, then, perhaps, have been equally liable (supposing the check to have been genuine) as a tortfeasor, but there is no evidence in the case, that the bank acted under his directions. They acted voluntarily, and with the laudable design of detecting a fraud, and avoiding a loss. They were struggling to indemnify themselves, and not for the service of Butler. But the objection appears to be susceptible of another and conclusive answer. If Cooper was to sue Butler, the consideration for which the check was given would be a lawful object of inquiry. The consideration of any negotiable paper is examinable, as between the original parties to that paper, and from the facts in this case we must consider Cooper as the person who originally received the check from Butler, supposing it to be good. The check then was founded upon a previous good consideration, or it was not. If there was a pre-existent debt for which it was given in payment, the debt would still exist against Butler, if the check was not good. Unless a check be paid, it is no payment. If, on the other hand, the check was voluntary, and given without consideration, Butler was not bound to pay it, for a promise without a consideration, is a nude pact, even though it be in writing. In no light, then, in which the court have been able to view the question, does it appear, that Butler was incompetent, and, consequently, neither of the objections to the conviction of the prisoner appear to be well taken.

Judgment, that the prisoner be sent to the state-prison, to be kept at hard labour, for fourteen years.