State v. Wilson

| Superior Court of New Hampshire | Jul 15, 1835

'.Parker, J..

A prosecution to recover ¿.military- fine, under our statutes, partakes of both a civil and. criminal character, It is instituted before a magistrate, upon complaint by the clerk of .the. company, setting forth the offence, and alleging it to be,against the peace-and dignity of the state. -'

The respondent is summoned - to appear ; and if on trial he is found guilty, the fine is adjudged:and execution issued, from, which,'if imprisoned, he may. be released on taking the poor .debtor’s oath. One fourth of. the fine when collected goes to the clerk, and the remainder-is paid, over to the captain, to- be “ expended- in’ defraying the .necessary'expenses ‘ of such company, in purchasing and repairing- musical in- ‘ strüments, and instructing the musicians belonging- to his ‘company.” If-the respondent: is discharged,.on.trial, he recovers no. costs. The prosecution is-, .therefore,..properly carried .on in the name of the-state, although it may be regarded as in some-measure-a private prosecution. : '-

,-Tlie first -objection is to- the sufficiency of the evidence to show the prosecutor to bé' clerk' of the .company. - He was shown to have acted"as. clerk for"more than:a year prior to the day'of muster ; 'and there are authorities -going to show that .this is - prima, facie: evidence of official character, even .where, the person is a .party to the -suit, and introduces the proof. 2 N. H. R. 206, Johnston vs. Wilson; 3 Johns. Rep. 431, Potter vs. Luther; 4 D. &. R. 366, Berryman vs. Wise. There seems, however,- to have been some divei sity of opinion upon this subject, (4 Bos. & Pul. 196, Smith vs. Taylor; 2 Stark. Ev. 373 n. g.) and it is not necessary to consider it further at- this''time.

- ’ .For the' purpose of- showing .that he was legally clerk of the. company, the prosecutor offered.;a-warranty signed by E. M. Bissell-as colonel of the 13th regiment';, and this evidence-is .sufficient, .provided' said Bissell .at the time of the date .held the- office ..of colonel. State vs. Leonard, 6 N. H. R. 435, Neither the commission of Bissell, nor any record evidence-of- his appointment was produced, nor was any ire-cessary. It was clearly sufficient, prima facie, for this prosecutor, to show that Bissell was acting as colonel at the time. 6 N. H. R. 356, State vs. Hascall; 2 Stark Ev. 372; 3 Camp. 432, Rex vs. Verelst, and auth. ante. On this point the case finds no other evidence than the issuing of the warrant, except that “he acted as colonel, and commanded the regiment on the said 29th of September, 1832.” Upon one construction of this language the proof would be insufficient. The act of issuing the warrant itself cannot be evidence of authority to issue it, and acting as an officer, at a parade more than a year afterwards, could not show him to have been an officer when the warrant was issued ; but if, as suggested, we may understand from the case that said Bissell was in the habit of acting as colonel, extending to a period before the warrant was issued, and that he also commanded the regiment on the day of muster, this would be enough.

The evidence to show that Morse was the captain of the company, was sufficient. By the constitution, the captains and subalterns, in the respective regiments, shall be nominated and recommended by the field-officers to the governor, who is to issue their commissions immediately on the receipt of such recommendation. But it is not necessary to go behind the commission, and show the previous proceeding. The commission itself, with the signature of the governor, and the seal of the state, must be due evidence of the appointment, and that the proper recommendation was made before it issued. State vs. Leonard.

The next objection is to the admission of a copy of the regimental orders for muster, from the records of the company. It is argued that a copy from the regimental records would be better evidence. The statute requires the adjutant to keep an orderly book, and record, among other things, “ all orders which may be issued by the colonel or commanding officer of the regiment” ; and it also requires the orderly sergeant, who is clerk, “ in an orderly book to be by ! him kept for that purpose, to record all orders and other ‘official communications received by the captain or eom- ‘ manding officer of the company.” N. H. Laws, 387, 391. By the statute, then, this order should have been recorded in both places ; and if it be said that the record of the adjutant is the best record evidence of the order as it issued, it may be answered that the record of the clerk is, in the same degree, the best evidence of the order as it was received. We have no doubt, upon general principles, that either of them is competent evidence in a case where the original is not required. But the admissibility of the copy offered in this case is settled by an express provision of the statute relating to prosecutions for fines, that “ if any or- ‘ ders, received or issued by the commanding officer of any ‘ company, shall be recorded in the orderly book of such ‘ company, a copy of such record, certified by the clerk of ‘ such company, shall be received as evidence of such or- ‘ ders.” N. H. Laws, 416.

The next objection is, that there was no evidence that Evans, who signed the orders as adjutant, was in fact adjutant, except that he acted as such afterwards at the muster. This objection is fatal, for the reasons before suggested. Tire act of issuing the orders cannot be received as evidence of the authority. If it could, the authority of third persons to do official acts, when it came in question, would be proved by the acts themselves, which would be absurd. It would seem, from the report, that proof of that kind was received in Rex vs. Jones, 2 Camp. 131, but it was probably there shown, or not denied, that the persons who signed as commissioners of the treasury had been in the habit of acting as such. 3 Camp. 433. The evidence that Evans acted as adjutant afterwards, at the muster, cannot have relation back, or prove the existence of the authority at the time the orders were issued. There should have been, some evidence that he had acted previously.

Another objection is, that there was no sufficient evidence that the respondent was duly enrolled in the company, or at least no evidence «that he had been- enrolled six months, which time, it is argued is allowed by the laws of the United States to a private to equip himself; and for this the counsel cites 9 Mass. R. 31, Commonwealth vs. Annis; 2 Pick. R. 172, Haynes vs. Jenks. Probably the better ■ opinion is, that the United States statute of 1803 is a- virtual repeal of the provisions in .the statute of 1792, by which six months seem to have been allowed for the- purpose of equipment. See the opinion.of'Lincoln, J., 2 Pick. 177. But we do not pause to settle this question1 at this time, for the statute of this state, provides, that the insertion of the . name- of any person in an order to notify and warn the members of a company, to appear- for military duty, ox its annexation thereto.; .shall be.sufficient evidence that such person ⅛ duly enrolled in the company. N. H. Laws, 411. The evidence which was offered must, therefore, be deemed at least prima facie evidence that the respondent was. duly enrolled, and had. been.so, for a sufficient period to make the issuing of an order to warn, him-to do. military-: duty'a proper act on the part of - tire captain ; and if he had any ground of exemption, because ^ he had; not sufficient, notice of his 'enrolment, he should-have offered the evidence'which would have raised the question. , ' For aught which appeared, lie-may have belonged to, the, company several years.. - ■ '

. Another question is, whether the captain of the . company was rightfully admitted’as a witness ;, and we-are of opinion that the objection that he was interested was properly overruled. By the statute, three fourths of any fine . which -is recovered is to be paid overdo him, .but he receives-if only asan official .trustee, to be expended .for certain purposes designated by the.statute. : There may be instances in which this is made, in fact, a matter of personal interest, but we dunk it is not, in the contemplation of the statute, such a beneficial interest as should - disqualify him. 1 Phil. Ev. 40, [42], 1 Doug. 141, Goodtitle vs. Welford; 12 East 250, Bettison vs. Bromley; 6 Taunt. 220, Phipps vs. Pitcher; 1 P. Wm’s. 290, Goss vs. Tracey. The- statute 'requires the clerk’to 'file the conrplain-t, and the .whole -proceeding may--be liad' without any active agency-on the part of the captain, - ■

The remaining objection arises from the rejection of the evidence offered by the respondant, on thé -trial, to show that the justice before whom the complaint was filed had acted as counsel- in the cause . before he tried it: but we are satisfied the ruling was correct. This was a-matter with .which the jury had nothing to do. If it could avail in any shape it must, have been on a motion to -the court.

New trial granted.