State v. Cole

19 Wis. 129 | Wis. | 1865

By the Court,

Cole, J.

For the purpose of showing the defendant’s guilty knowledge, witnesses were introduced on the part of the state to. prove that he had passed other counterfeit bills of the same denomination and on the same bank as the counterfeit bill laid in the indictment. This evidence was objected to, on the ground that the bills about which the witnessés were interrogated were not produced in court. And it is insisted that, in order to render this testimony in regard to passing other bills admissible, those bills should have been produced in court, if within the reach of the prosecution, or notice must have been given the defendant to produce them, and he have failed to do so after it appeared they were in his possession. ■ We are inclined to the opinion that this position is sound, and states the correct rule of evidence on this point. It is true we have not found many adjudged cases bearing directly upon this question; but those which we have found seem to favor this rule, and it is certainly in harmony with the general analogies of the law. In the case of The People v. Lagrille, 1 Wheeler’s Crim. Cases, 412, the court say that evidence of passing other forged bills of the same description, or showing the same in the possession of the prisoner, and notice, may be given in evidence to prove the scienter, if such bills be produced in court. It is admitted that this is an exception to the general rule, which extends to almost every case, and which ties the party down in his proof to the notes laid in the indictment. See the following authorities, which have a bearing upon this point more or less direct: Rex v. Ball, 1 Campbell, 324; Rex v. Millard, R. & Ry., 245; Stalker v. The State of Conn., 9 Conn., 341; Roscoe’s Crim. Ev., p. 67; 1 Phil. Ev. (Edwards’ ed.), p. 768, Note 208 ; 3 Greenl. Ev., § 111. The attorney general referred ns to the case of Reed v. The State, 15 Ohio, 217, as laying down a different rule; but from the cautious manner in which the court expresses its opinion upon the question, it may be doubtful whether the case is good authority to the point to which it was cited. For the court say: “If the note was in court, or, without great inconvenience and delay, could be produced, in our opinion it should not be dispensed with. It would then afford to the accused the opportunity to contradict the proof as to the character of the note; and it should be produced on the trial if within the jurisdiction of the court and the reach of the prosecution.” It seems to us that this fully recognizes and approves of the rule, that to admit proof that the defendant had passed other counterfeit bills, such bills themselves should be produced or their absence accounted for, as in other cases where secondary evidence is admissible. An examination and inspection of such bills in court would more satisfactorily show their character, and might possibly rebut the presumption of guilty knowledge.

An objection was taken to the testimony of Hughes, Brown and Paige, who swore in regard to the character of certain bills passed by the defendant, because they were not experts and did not profess to have any personal knowledge of the hand writing of the officers of the Bank of Rutland. They were persons who had been engaged in mercantile business for several years, and claimed to be judges of the character of bank no'tes in circulation. We have considered somewhat the objection taken to the admission of their testimony, but have formed no decided opinion upon the point, and therefore do not express any.

The other exceptions in the case we think must be overruled as untenable, unless it be an exception taken to the first instruction, which is not very clearly expressed and which might have possibly confused the jury. But still a new trial is awarded upon the point first decided.

The judgment of the circuit court is reversed, and a new trial awarded.