2 Dall. 239 | Pa. | 1795
Lead Opinion
All the cases of invalidation in the books,
The opinions of judges ought unquestionably to weigh greatly with their successors ; but where the principles they lay down cannot be acceded to, a difference of sentiment must necessarily take place: so says Chief Justice Vaughan. It is agreed on all hands that the verdict here cannot be given in evidence in a civil action on the note. How then is Heister interested in the event of the prosecution ? In Rex v. Whiting. 1 Salk, 283, on an indictment for a cheat in procuring a note from II. by some slight, II. was not allowed as a witness, (Vid. Oas. Temp. Ilardwicke 359,) and the reason given was, that though it was no evidence in a subsequent civil suit, “we are sure to hear of it to influence the jury.” But why are we sure to hear of it ? It is the duty of the court to oppose themselves to such an attempt; they ought to repress every insinuation tendering to mislead the jury, and at least preserve them from an undue bias in the face of the whole country.
It seems to me, that the resolutions of the courts of this government in this particular, are founded on more substantial principles than those which have been cited by the defendant’s counsel from the English books, and conduce more to the interests of society. Above two centuries ago, few of the nobles or gentry of Great Britain could write their names, and hence sealing and delivery of deeds became necessary. The law changes with the times; and since men at present are expert in imitating the signature of others, it becomes expedient, in order to detect frauds of this nature, to admit the testimony of the parties, whose hands have been charged to be forged, and leave their credibility with the jury.
I think the witness should be admitted, but not for the reasons assigned.
The cases in Hardress and Strange are express, that the evidence should be rejected. So are the compilers, Sergeant Hawkins and Lord Chief Baron Gilbert; and I know of no contradictory resolution in the English books. In all cases of forgery in England, where the party injured lias been allowed to swear, he has had a release to entitle him as a witness. Whether the policy of the law there is right or wrong I will not presume to determine. On the one hand it might be deemed dangerous in a commercial country, to allow the persons whose names are subscribed to notes, bills or receipts, to impeach or shake their credit; on the other hand, it might be
The principal however may appear doubtful. My ground of concurrence is, that as such evidence has heretofore been received in this government, on solemn argument, we should adhere to those resolutions, to preserve an uniformity of decision.
It appears to me that the witness is competent.
The objection that the witness is brought to impeach his own instrument has been fully answered. It rests on a fallacy, and presupposes the note to have been signed by Heister, which is the very fact to be tried.
The exception taken on the ground ofinterestisnot well founded. Heister can derive no advantage certain from the judgment, nor can the verdict on the indictment be received in evidence in another suit. I agree that the general current of the English authorities, before the case of Abrahams v. Bunn, (4 Burr. 2252) has been adverse to such testimony; but I cannot bring myself to believe, that the reason given for the rejection is a sound one. The case of Abrahams v. Bunn, seems to have established a different doctrine, and confined the objection to the credibility of the witness.
Be this as it may, the decisions of our own courts have been uniformly different from the doctrine contended for by the defendant, and it is of the utmost consequence to the community, not to deviate from resolutions established on mature consideration. To the cases which have been thus determined, may be added that of República v. ThomasjWright, before the Chief Justice and]myself at Newtown, May assizes 1794, where on, an indictiment for uttering a forged indenture, Daniel Thomas, the party injured, was received as a witness on argument.
Under these determinations, I think the law is fully established in this state, and that the exception must be restrained to the credit of the witness, of which the jury should judge dispassionately under all the circumstances.
Concurrence Opinion
I concur with the Chief Justice ; and I. have no hesitation in saying, that independent of the cases cited, which have been adjudged in Pennsylvania, Joseph Ileister should be admitted as a witness. And he was sworn accordingly.
Jacob Morgan was then offered as a witness, with a full admission of his responsibility to pay the forged note which he had indorsed; and was excepted to.
It was contended on the part of the prosecution, that he had no interest in the event of the suit. If the defendant was convicted, Morgan must, notwithstanding, pay his indorsement; and he could neither recur to Heisler nor Smith, whose signatures have been proved to be counterfeited, and therefore he could gain nothing on such conviction. Should the defendant’s acquittal take place, it will not be pretended that Morgan can either gain or lose thereby.
The "witness is within the policy of the rule of evidence, as laid down in 1 Term Pep. 296, 300, and as narrowed down in 3 Term Pep. 34, 36. Ho has given colour to the note by his indorsement, and shall not now be allowed to impeach or invalidate it. In the present aspect of the business, he cannot be received as a witness.
The court being adjourned, it was proved in the afternoon of the day, that Morgan had secured the payment of the 1470 dollars by a new note to Thomas Allibone the indorsee, who had delivered him up the instrument charged to be forged, with his indorsement thereon. Whereupon the court without any difficulty, admitted him to be sworn.
The jury after a long trial, convicted the defendant of the fifth count, and acquitted him of the other five counts in the indictment.
The defendant’s counsel afterwards moved in arrest of judgment, and insisted that no indictment would be good, which did not contain the proper terms of art. 2 Haw. c. 25, § 35. Here is no place or venue laid where the offence was committed, except as to the mere conspiracy, and that connected with the false color and pretence, which ought to have been set forth. 2 Stra. 1127. Some place must be shown, where the offence was committed. 2 Haw. c. 25, § 83. And in criminal cases, though the county be in the margin, yet the place where the fact is supposed to be done, must in the indictment be laid in com. prwdieto; aliter in civil cases. 3 Wins. 496. Exception may be taken to the want of a place, in
It is not alleged, that the defendant of Langford Herring did any particular act at any place, to carry the conspiracy into execution ; nor that they knew that the note was forged, which was indispensibly necessary. In an action for keeping a dog used to bite, the scienter is held to be material. Indictment for selling as two chaldron of coals, a less quantity, was quashed on motion. 3 Burr. 1697.
The counsel for the commonwealth admitted, that if there was no venue, it might be objected, even after verdict. But they contended, 1st. That the conspiracy itself was an an indictable offence, though nothing be done in' prosecution of it, and the venue must be where the conspiracy was, not where the result of the conspiracy is put in execution. 1 Salk. 174. 1 Stra. 193 to 196. Leach’s Crown Cas. 38, 39.
2d. That upon a fair construction of the indictment, the whole offence laid in the fifth count, is stated to have been perpetrated in the city of Philadelphia. It is charged that on the 17th day of August 1793, the conspiracy was had at the city aforesaid, and in the conclusion, the words then and there, are applied to the counterfeited note. The city and the 17th day of August, are the unity of place and time, to which the whole count must refer.
In an indictment for a cheat, it is admitted, that the false tokens must be set forth ; but it is otherwise'in a conspiracy, which is an independent offence, and in itself indictable.
There are sufficient words in the indictment to show the defendant’s knowledge of the note being counterfeited, which they procured him to indorse.
The court gave no opinion on the motion in arrest of judgment, but continued the same under advisement.
The defendant afterwards indemnified Jacob Morgan fully, and the jury having recommended him as an object of mercy, when they delivered in their verdict, a nolle prosequi was entered on the indictment on the 20th March 1796, by the attorney general.
