Lead Opinion
The opinion of the Court was drawn up by
The defendant was indicted for having forged a deposition, purporting to have been signed by one Joseph Greely, jr., and the certificate of caption thereto, purporting to have been signed by one James M. Sargent, a justice of the peace for the county of Merrimack, i*n the State of New Hampshire; — and also, for causing the same forged deposition and certificate of caption to be read to the Court, as true, on the trial of a libel for divorce of the defendant, from the bonds of matrimony with one Marilla Kimball, his wife. The jury having returned a verdict of guilty, the defendant takes exception, first to the ruling of the presiding Judge, upon certain evidence offered during the trial, instructions to the jury, and refusals to instruct them as by him requested; and second, in declining to quash the indictment on his motion, and refusing to arrest the judgment after verdict.
Many points were presented at the trial, which do not
Joseph Greely, jr., whose name is affixed to the deposition, alleged to be forged, was examined as a witness at the trial, after the deposition was read to the jury; and, among other things, in the direct examination, he testified that he did not sign the name of "Joseph Greely, jr.,” thereto, or authorize any one to do it; that it was not done with his knowledge or consent, nor did he send it to the defendant, or. to any one. After a cross-examination somewhat extended, the exceptions state, — "The defendant here offered to show by the witness, that the facts stated in the deposition were true, which being objected to, were excluded.”
No evidence coming from this witness, in the direct examination, before the cross-examination, tended in any manner to show that the statements in the deposition, in support of the charge in the libel as the cause of the divorce prayed for, were “true, nor was there any evidence from him, on the point, whether they were true or otherwise, in any way elicited. If the defendant had any motive in the offer of this evidence, it may be supposed to have been for the purpose of obtaining something from the witness called by the State, which might operate in some manner in his favor. Could this have been done under the circumstances, as matter of right?
" It is a well established rule, that the evidence offered must correspond with the allegations and be confined to the point in issue.” 1 Greenl. Ev., § 51. "And the rule excludes all evidence of collateral facts.” Ibid, 448. "In cross-examination, however, the rule is not applied with the same strictness; on the other hand great latitude is allowed by the Judge, in the exercise of his discretion, when, from the temper and conduct of the witness, such course seems essential to the discovery of truth.” " And, as the general course of cross-examination of witnesses, is subject to
In commenting upon the cross-examination of witnesses, by Mr. Starkie, in 1 Stark. Ev., § 19, p. 132, it is said, " the mode of examination is in truth regulated by the discretion of the Court.”
It is very apparent that the exclusion of the evidence offered was not erroneous, when the question is tested by the principles just stated.
But, on other grounds, the fact offered in evidence by the defendant was inadmissible. The issue before the jury, on the trial of the defendant for the forgery of the deposition, as alleged, did not involve the question, whether Marilla Kimball was guilty of the charge contained in the libel of her husband, the defendant, or not. And if he had called a witness, not before called by the State, to establish such fact, it is not, and cannot be reasonably maintained, that such evidence would be competent. But it is insisted, that the fact offered to be proved was admissible in cross-examination, as having a tendency to show that the defendant was not influenced by fraudulent, intentions, in placing the name of the witness, who knew the truth of the statements therein contained, to the forged deposition. But it may be remarked, in reference to this argiunent, that it often happens, that a litigating party may rely on certain facts, known to exist by one who can be a witness, which standing alone, might establish the issue on his part; but these facts might
The right secured to a party, of applying the efficacious test of cross-examination for the discovery of truth, should not be unreasonably abridged. It may, however, be extended so far, that the Court in its discretion may properly arrest it, as we have already seen. And when it is actually used for the purpose of bringing out, "the situation of the witness, with respect to the parties, and to the subject of litigation, his interest, his motives, his inclinations and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers o'f discernment, memory and description,” it becomes important, to enable the jury to judge how far they can rely upon the principal facts disclosed in the direct examination. But when this privilege is resorted to, with the design to introduce irrelevant and objectionable facts, having no connection with those called out in direct examination, in order to make an illegitimate impression upon the minds of the jury, which may favor the party so intending, or create a prejudice injurious to the other, it cannot be regarded as anything short of an abuse of the privilege, and it becomes worse in its consequences than collateral facts, called out for the purpose of contradicting the witness, and more improper, than the introduction of. evidence in support of the case of the party, who offers such evidence, before he has opened his own case. Such a course is unwarranted by legal rules, and may produce great injustice; and it is the duty of the Court to interfere.
It is difficult to perceive, that matter not pertinent to the
It is further contended by the defendant, that he was entitled to show the fact proposed on the cross-examination, as having a tendency of itself to discredit the witness. The evidence does not appear to have been offered for this purpose. But were it otherwise, it is not perceived that the fact, if proved, could have any direct tendency to impeach the witness, so far as to entitle the defendant to pursue the inquiry as a matter of right; on the contrary, it is not only purely collateral, but so remote, if it could have any possible tendency in the supposed direction, as to be clearly within the discretion of the presiding Judge to determine whether it should be admitted or excluded.
The Judge instructed the jury, that "a point had been made, that if the defendant had prepared the deposition and caption, and signed them, and sent them to the witnesses as matter of form, and that if they gave their sanction to the instrument, and returned it to him, and he supposed it was so ratified, it does away the intent to defraud. I instruct you, if the respondent really believed such to have been the facts, it would negative a fraudulent intent. But upon this point you must examine the testimony.” After this, the Judge remarked to the jury, " then another important question arises, 'with what intent was it done?’ For it must have been intended to defraud some one. Was it done with an intent to defraud his wife ? For I believe it is not contended that it was a fraud upon any one else.”
It is insisted in argument by the defendant, that the Judge instructed the jury that the making of the deposition and affixing the name of Greely thereto, and making the caption, and putting to it the attestation of the magistrate, was a fraud upon some one, thus making that, which was for the jury to settle, a matter of law. It is quite manifest that the
The jury were informed by the Judge, that they would be authorized to infer an intent to defraud, from the character of the instrument, if they should find it forged. Every person is supposed to intend that which is the natural and ordinary result of the acts done by him, in the absence of all evidence to the contrary. The instruction was a statement of that rule, and, by a consideration of all the evidence derived from the deposition, they might apply it with propriety, if they were satisfied it was applicable.
The additional remark, connected with that just considered, was certainly the expression of an opinion in a matter of fact, but he abstained from giving them an imperative direction as legally binding. This was not erroneous.
The Judge declined to allow the jury to take with them to their room the Revised Statutes, and the requests for instructions made by the defendant, and which were given no‘ further than the same were embraced in the general charge.
It is the duty of the Judge to give the principles of law, which he regards as applicable to the facts, as the jury may find them. And, if he omits to do this, so far as the parties may deem important, in view of the evidence, further instructions may be demanded with propriety. But a party has not the right to require the Judge to furnish the statutes for the jury, and allow them thei’efrom to ascertain the law, and judge o.f its applicability to the facts presented. The construction of statutes is often much aided by general principles, not laid down therein, and can only be known' by careful study of elementary treatises and reports of deci
The only object in permitting the jury to see and have with them the instructions requested by the defendant, and refused by the Court, would be to enable them to analyze them, and apply their own knowledge of the law, and make the proper and legal corrections, in their verdict. In the course taken by the Judge, he did not err.
The defendant relies upon the refusal of the Judge to give to the jury the fourteenth, fifteenth and seventeenth instructions requested.
The legal proposition embraced in the first of these is,— that if the defendant believed substantially the evidence in the deposition, and his object was only to obtain an equitable divorce, believing himself entitled thereto, and his sole object was to relieve himself from the inconvenience and odium of living in society, separate from his wjjfe, without the hope of reconciliation: and he did not intend to defraud her of money or other property, or injure her charaeter unnecessarily, he would not be guilty of forgery, though' he might manufacture the deposition and utter the same; and that before the jury could convict, they must be satisfied beyond a reasonable doubt of a different intention. We cannot give so limited a construction to the statute, as to hold that the fraud contemplated thereby, as an element in the crime of forgery, or in the uttering of a counterfeit instrument, was confined to the design of taking money, or other property, or doing an injury unnecessarily to the character of the party attempted to be defrauded. And the sincerity of the belief of the defendant of the truth of the facts stated in the counterfeit deposition, and the objects sought by him, as stated in the request, cannot take away the legal guilt which would attach to him, if this belief and these objects were wanting.
The seventeenth instruction requested, — "that no fraud in law, could have been committed upon Marilla Kimball at the time of the alleged forgery and uttering, if she was the lawful wife of the respondent,” is supported by no authority cited, by no common sense or moral principle, and is manifestly/absurd.
The objections to the indictment, presented to the Court, in the defendant’s motion to quash the same, are substantially embraced in the motion to arrest the judgment, and may well be considered under the latter.
One ground taken in support of the motion is, — that the person, whose name purports to be signed to the caption of the deposition, as a justice of the peace, does not appear to have had authority, under the laws of this State; or to have been " lawfully empowered,” to take the deposition, by anything appearing in the certificate. And it is insisted, that those depositions alone, which are taken out of the State, can be received in the discretion of the Court, which are in the form prescribed by the statute, for the certificate, and taken by a person "lawfully empowered” to take them.
By R. S., c. 107, § 20, "the Court may admit or reject
The provision, that the Court may exercise a discretion in admitting or rejecting a deposition taken out of the State, has not been regarded as restrictive in the sense contended for by the defendant; but that the Court might admit the deposition, notwithstanding an omission of some things in the certificate, deemed essential, in depositions taken in the State, provided it was taken by a justice of the peace, or a notary, or other person, not a justice of the peace or notary, and provided such other person was lawfully empowered to take it. Wo do not intend to say that a deposition, taken out of the State, according to the requirements of the statute of this State, may not be rejected by the Court, for reasons which satisfy it that it would tend to promote injustice ; but of this, we here give no opinion.
The reason, that the judgment should be arrested because the deposition does not purport to be proof in relation to any pecuniary demand or matter, has been incidentally adverted to before, in the consideration of instructions requested to be given to the jury. The statute certainly does not admit of the limited construction contended for. A person may be defrauded of the dearest rights, besides those appertaining to property of pecuniary value. Good name, liberty and life are secured to every individual by the constitution; and a deposition, counterfeited, and purporting to be so taken, attested and certified, as to constitute legal proof, if genuine, with the intent to deprive him of either, we cannot doubt, would bring the one who made it within the provision of the statute.
It is contended that the indictment is insufficient, because
Another ground of the motion in arrest, is, because it does not appear from the indictment that the libel, or petition for divorce, was legally pending in this Court at the time the deposition purports to have been uttered. This is not true in fact. The indictment alleges, that the defendant heretofore, to wit, " on the 29th day of January, A. D. 1859, petitioned in writing this Court, then and there in session,” &g. "to be divorced from.the bonds of matrimony then existing between him and Marilla Kimball, his wife,” &c., and that " said petition for divorce was entered at said January term of this Court, 1859, and that the same was continued to the then next April term of the same, at which term the said petition for divorce came up for trial, and the same was tried on the 18th day of June, in the year aforesaid-, before said Court, then and there being in session.” And it is further alleged that, "on June 15, A. D. 1859, the defendant did feloniously make, forge and counterfeit a certain false, forged and counterfeit deposition,” &c., and that he
Another objection to the sufficiency of the indictment, made in the motion in arrest, is, that the full contents of the libel, or petition for divorce, is not set forth therein, so that the Court can judge whether the deposition is receivable as legal proof in support of the same. It is alleged in the indictment, that the defendant petitioned in writing this Court, then in session, [Jan. 9, 1859,] to be divorced from the bonds of matrimony, &c., for desertion without justifiable cause, by Marilla Kimball, his wife, of the defendant for more than five years, then last past. The ground for the divorce, thus alleged in the petition, was one recognized by the practice of the Court as being sufficient to entitle the libellant to a decree therefor, on the introduction of satisfactory evidence; and the indictment was sufficiently explicit and full, to show that the deposition, if genuine, would have been receivable in evidence on the trial of the libel.
A further reason, as stated in the motion, is, that it is not stated, in what purports to be the caption of the deposition, by whom the deposition was written, as required in E. S., c. 107, § 15, head 2. And that the deposition does not purport to be one returnable to any term of this Court, for the trial of civil causes, purporting to have been taken for a May term, 1859, which did not exist as a matter of law.
If the deposition had been genuine, and could not have been received legally as evidence, in the trial of the libel, being void upon its face, it is properly conceded by the attorney general that the judgment must be arrested.
It appears, on inspection, that the deposition purports to have been "written down by the authority of the undersigned justice of the peace.” The statute requires that the justice or notary shall make out the certificate, and annex it
Under the 5th head of the section last referred to, another fact required to be stated in the certificate is, — "the Court or tribunal, in which it is to be tried, and the time and place of trial.” In the certificate, it is manifest that it was intended that these should be stated, but the time of the ses-, sion of the Court, to which the deposition purports to be returnable, is the "May term of said Court, in the year of our Lord one thousand eight hundred and fifty-nine,” which is a term that does not exist in the county of Penobscot for the trial of issues of facts.
These errors, if they occurred in the caption of a genuine deposition taken in the State by a justice of the peace, and to be used therein, would make it inadmissible. But if taken out of the State, would it be admissible, in the discretion of the Court under the provision in statute, c. 107, § 20? We think it clear, that by the authority of decisions, in analagous cases, this question must be answered in the affirmative.
By the statute of 1821, c. 85, § 3, it was made necessary that deponents should be cautioned and sworn, to testify the truth, the whole truth, and nothing but the truth, before they should give their testimony. And it was decided, in the year 1839, that a deposition, taken out of the State, could be used under a provision in the statutes of 1821, c. 85, § 6, similar to that of 1841, c. 133, § 22, and of 1857, c. 107, § 20, notwithstanding the oath was not administered to the deponent before giving his testimony. Blake v. Blossom, 15 Maine, 394. This construction was adopted by the Legislature by incorporating substantially the provisions of the statute of 1821, into the two revisions made afterwards.
The error in misstating the session of the Court, was unquestionably one of clerical character. Notwithstanding the error, if the deposition had been given by Joseph Greeley, jr., and certified by James M. Sargent, as the one in question purports to have been done, it certainly would have all the real sanctions of truth as much when made returnable to a Court which should commence its session in May as in April. If the deposition had been actually taken as it purports to have been, we cannot doubt that, in the exercise of a discretion under the statute, it might have been admitted.
The forging of any writing, by which a person might be prejudiced, is punishable as a forgery at common law. State v. Ames & al., 2 Maine, 365 ; 3 Chitty’s Crim. Law, 1022. It is said, in Commonwealth v. Ayer, 3 Cush., 150, that " forgery at common law is defined to be a false making, a making malo animo, of any written instrument, for the purpose of fraud and deceit.”
The indictment in the case before us contains a count for forging the deposition and the caption thereto annexed, and another for uttering the same with intent to defraud Marilla Kimball, at common law. Some of the objections to the counts in the indictment under the statute are avoided.
The statute on the subject of forging and counterfeiting, c. 121, § 1, was obviously designed to prescribe the punishment, different from that provided by the common law, rather than to revise the whole subject matter as it stood by the common law. The latter would, by implication, repeal the common law. Commonwealth v. Ayer, before cited*
The first section of chapter 121, in the E. S. of 1857, and of chapter 157, sections 1 and 2 of the revision of 1841, are substantially the same as chapter 11, sections 1 and 2 of
Motion in arrest of judgment overruled.
The rulings of the presiding Judge, together with his- instructions to the jury, and his refusals to instruct them, are legally correct. Judgment on the verdict.
Dissenting Opinion
dissented upon the first point decided, but concurred in the remainder of the opinion of the Chief Justice.
The prisoner was on trial, charged with having forged the signature of the apparent deponent to a deposition. The person, whose name it was alleged was thus forged, was called as a witness by the government, and he testified positively that he never saw the deposition, and never signed his name thereto. In cross-examination the prisoner desired to ask the witness, (in substance,) if he did not know of his own knowledge that the facts stated in the deposition were true. The Judge excluded the testimony.
No one would for a moment contend that it would be a defence to the charge, to show that the facts stated in the deposition were true. The offence consisted in falsely placing the name of an apparent deponent to a deposition, which he never saw. Whether that deposition stated facts or falsehoods, in this view, is immaterial. The prisoner, if he thus forged the name, is guilty, although every sentence contained an undoubted fact.
The question, however, at the time of trial, was, whether or not the prisoner did in fact falsely make and utter the instrument. He denied the fact charged. He insisted that the witness, notwithstanding his denial, did in fact give the deposition and sign his name to it.
The prisoner had a right to set up this denial in his defence. He also had the right to establish by proof any fact
It is apparent that if the witness did know the facts, and could have testified to all the matters contained in the deposition, that it would be more probable that he did in fact give the deposition, than if he was entirely ignorant of the facts stated. In order to lay the foundation for the theory or allegation that the signature was genuine, the first step would be to show that it might have been given truly and according to the knowledge of the assumed deponent. The prisoner had a right to the fact, to argue therefrom that the witness was the person of all others to apply to for such deposition' — as he knew all the facts. If a person is on trial for forging a note for one hundred dollars, and the person whose name appears thereon is a witness and swears that he did not sign it, and never gave it, cannot the prisoner in cross-examination ask him if he did not owe the accused that sum at the date of the note ?
If he did owe him that sum, but did not give the note, it is clearly no defence. But it is a fact, which, in the controversy, may be quite material in determining from all the circumstances and probabilities the guilt of the prisoner. It would be quite probable that a man who in fact owed the exact sum had given such a note. So in this case, the accused sets up in defence the theory that the deposition was in fact given, or assented to, and, in my opinion, he had a legal right to have an answer from the witness as desired, that he might urge it, for what it might avail, in determining from all the circumstances belonging to the case, the probabilities and improbabilities surrounding it, the guilt or innocence of the prisoner.
I do not regard this as such a collateral matter, that it was within the discretion of the Judge to admit or reject it.
The evidence offered was as to facts stated in the deposition, and bore directly upon the question in issue, however feeble the fact of knowledge might prove to be.
I have never understood that, in our practice, the defendant was prohibited from introducing new facts, important for his defence, by the cross-examination oí a witness of the other party. It may be a useful rule, but it has not been adopted by this Court, and ought not to be applied for the first time in a criminal case. I do not, however, understand that the majority of the Court place the decision of this case on that point — or decide that the rule is adopted in this State. In my opinion the exception to the ruling of the Judge on the point above stated should be sustained.