10 N.C. 404 | N.C. | 1824
Lead Opinion
The indictment charged that the defendant, "being an evil disposed person and designing and intending feloniously to defraud one *225 William R. Smith, on the 1st day of October, in the year of our Lord 1822, in the county of Buncombe aforesaid, did attempt to pass feloniously and fraudulently to the said William R. Smith, as good and genuine, a false, forged, and counterfeited bank note purporting to be a good and genuine bank note of $100 on the Bank of South Carolina, which false, forged, and counterfeited bank note is as follows, to wit: [Here follows the note] with intent, etc., he, the said William Welsh, then and there well knowing, etc."
On the trial before Badger, J., the attempt to pass the note, and defendant's knowledge that it was not genuine, were satisfactorily proven. To show that there was such a bank as that mentioned in the indictment, the State offered in evidence a duly certified copy of an act of the Legislature of South Carolina, passed in 1802, entitled "An act to incorporate the State Bank," and imposing certain restrictions on the directors, officers, and servants of banks in this State. The only part of this act material to this purpose was the first section, in these words:"Be it therefore enacted, That so much of the act passed on the 19th day of December, in the year of our Lord 1801, entitled `An act to incorporate the South Carolina and State banks,' as relates to the said State banks, be and the same is hereby repealed."
Two objections were taken to this evidence: First, that the law produced was not the act of incorporation, but an act which referred to it; and, second, that the act referred to incorporates the South Carolina Bank, and not the Bank of South Carolina mentioned in the indictment.
The judge received the evidence and left it to the jury to say upon that evidence whether there was such a bank as "the South Carolina Bank" mentioned in the act, and whether that is the same bank (406) with the Bank of South Carolina mentioned in the indictment.
The jury found the defendant guilty; a new trial having been refused, the defendant appealed. This is in indictment for attempting to pass as good and genuine a forged note of $100 on the Bank of South Carolina. In order to prove the existence of such a bank a certified copy of an act of the Legislature of South Carolina is introduced, which was (407) passed in the year 1802, and entitled "An act to incorporate the State Bank, and imposing certain restrictions on the directors, officers, and servants of banks in this State." The first section of this act, the only part of it shown in evidence, repeals so much of the act passed 19 December, 1801, entitled "An act to incorporate the South Carolina and *226 State Banks," as relates to said State Bank. The objection taken to this evidence is that it is not a certified copy of the act of incorporation, but of another act referring to it. It must be acknowledged that a certified copy of one act is, as far as it goes, equal to a certified copy of another act, though it may not afford equal assurance of the fact. It is evidence of the same kind; and its sufficiency to establish the fact is to be judged of by the jury; in the same manner as the execution of a deed may be proved by one subscribing witness alone, although there are others to the deed who are not called. Accordingly, if the copy now offered recited the act of 1801, I should deem it unexceptionable, as coming from the same source with a copy of the first act, made on purpose to be certified. But here the title of the act of 1801 is alone recited, and it may be presumed from hence that evidence of a higher degree, viz., the act itself, or a copy, is kept back; and then the legal presumption follows that if it were produced it would disprove the fact sought to be established. The fact in controversy here was whether, when the defendant attempted to pass the note, viz., 1 October, 1822, there was such a bank in existence as the Bank of South Carolina. The best evidence of that fact is a copy of the law enacting the bank, for that alone can show the duration of its charter; but the evidence offered is the recital of the title of such act. The title of an act is not part of the act. Barrington, 444; I Ld. Ray., 72, and appears to me to be inferior evidence to the act itself. (408) on this ground I think there ought to be a new trial.
HALL, J., was of the same opinion.
Addendum
To bring the offense within the act of 1819, under which the defendant is indicted, the State must prove not only that there once was, but that there was on the day the note in question bears date, such a bank as the note purports to be issued by, and that the note, if genuine, would be obligatory on said bank. These are questions of fact; but the evidence by which they are to be proven must first be judged of by the court, to see that it is competent and relevant. A fact may be proven two ways: first, by proof direct; secondly, not by proving the fact in controversy, but by proving some other fact from which such fact may be inferred. To give the utmost credit to the evidence in question, as to its direct effect, it only establishes, and that by way of recital and implication, that the Legislature of South Carolina, in the year 1800, passed an act incorporating the bank in question. But whether that act, by the terms of its limitation, continued up to the time this note bears date, or expired before; whether this is the form of these notes; whether they act in this, or any other particular, by a president, directors, and cashier, or by either of these *227 officers, or whether they have such, in no wise appears. They may act entirely in a different manner, and by different officers and organs; that they do act in making notes by a president and cashier is founded only in conjecture; because most banks have such officers and act by them, and use this form in making their notes. But conjecture is not the basis on which judicial proceedings rest. I say that these facts appear neither by direct proof nor by an inference warranted by law; and if so, the court should have put its hands upon it as irrelevant. I think it should also have been rejected because the very evidence itself shows upon its face that the party offering it has better evidence in his power or possession; for the production of a law (409) of an adjoining State, properly certified, is certainly within the power of the State; and the act produced by its recitals and references shows that there is such an act; in truth the contents of these very recitals and references, the State contends, prove the existence of the act in question. The act introduced is, therefore, secondary evidence as to such inferences, for it shows that, if the facts exist, the party has it in his power to produce the primary evidence showing their existence. This, therefore, is not a verdict contrary to the evidence, but a verdict without evidence. It is a mistake to say that judges may draw such inferences of fact as they think proper. They are bound by the law, and cannot make inferences which the law does not warrant any more than they can find against a legal presumption. They can no more infer that A. knows a fact because B., a stranger, knows it, than they can infer that when A., with a knowledge of what he was about, puts a pistol charged with a proper portion of gunpowder and an ounce ball to the breast of B., that A. did not intend to kill B.; for the law presumes the intent by using a weapon proper to effect it. But in the case first put, if A. is the wife of B., and the thing is of a family and domestic nature, and in the case last put, if the weapon is not of a deadly kind, and the question of intent is therefore less doubtful, so that there is not a legal presumption one way or the other, the question of inferring knowledge in the one case and of intent in the other is left to the jury as within their legitimate powers, which shows that a jury has not the arbitrary power of drawing inferences which the facts will not in law warrant. Whatever, therefore, may be the facts, I am satisfied that the evidence did not in law warrant the jury in saying that there was, on the day the forged note bears date, such a bank as it purports to be issued by, and that the note, if genuine, was obligatory on such bank; and, therefore, the evidence should not have been submitted to them.
PER CURIAM. New trial. *228
(410)
