25 F. Cas. 682 | U.S. Circuit Court for the District of Eastern Pennsylvania | 1827
It is insisted by the district attorney that by compelling the witness to answer the question “whether B. Johnson had told him that if he would come to his house on a certain day he would have Moses, the prisoner there:” the court departed from the reason and policy of the general rule first laid down; that the witness was not bound to disclose the name of the person from whom the confidential information came which led to the detection and apprehension of the accused. The court think quite otherwise. In the latter ease individual security is not sacrificed to public policy, since it never can be material to the defence of the accused that the name of the informer should be disclosed in the trial. But it is quite otherwise in the former case. The situation in which the defendant was found, at the time of his apprehension, warrants the presumption of his guilt; and it may therefore be all important to his defence to repel this presumption by showing that he was at Johnson’s by accident, or by the really insidious but apparently friendly invitation of the owner of the house; which latter fact the jury might possibly believe to be made out by the affirmative answer of the witness to this question. If this be so, it is certainly much better that the .encouragement of persons to assist in detecting and apprehending those who are suspected of crimes, which the suppression of this eviden'ce is designed to hold out, should be withheld, than that the safety of the accused should be hazarded, by denying to him the benefit of the disclosure. For myself I declare that I never will consent judicially to sacrifice any individual, whether it concerns his life, liberty or property, to notions of public policy, unless I am commanded by positive law to do so.
The district attorney having proved the hand writing of the prisoner, by his acknowledgment that a certain paper exhibited in court was written by him, asked the witness if he believed that another paper, purporting to be an order signed by the prisoner, directing his trunks to be delivered to the bearer, was of the hand writing of the prisoner. The witness answered that he had never seen the prisoner write, nor had he- ever received a letter from him ¡or corresponded with him; but that he believed the order to be his hand writing, having compared it with the writing which he acknowledged to be his. The district attorney then offered to read the order, which was objected to by the prisoner’s counsel; the evidence being nothing but comparison of hands, which is not evidence in a court, much less in criminal cases. The counsel cited. Martin v. Taylor [Case No. 9,166]; Starkie, Ev. 654. In support - of the evidence, were cited the following cases: 10 Serg. & R. 110; Bull. N. P. 232; 1 Bin. 664; 4 Esp. 117, 122; Id. (Day’s Ed.) 273, note..
WASHINGTON, Circuit Justice. I confess for myself, that I never was well satisfied with the reason of the general rule, that comparison of hand writing is not competent evidence to go to the jury; and yet that a paper is such evidence, if the witness has seen the person write, and expresses his belief that the paper so offered ⅛ evidence of the hand writing of the person. For it seems to me that the rejected evidence is, in most cases, a much more satisfactory test of the hand writing than that which is admitted. Nevertheless, I consider the rule to have been for a long time so settled in England; and the decision of this court in the case of Martin v. Taylor, proceeded upon that ground. Farmers’ Bank of Lancaster v. Whitehill, 10 Serg. & R. 110. decides that in a civil case, and in corroboration of other evidence to prove hand writing, comparison of hands is good evidence by the common law of Pennsylvania. Wherever therefore such a ease comes before this court, that case will be respectfully considered. But this being a criminal case, I shall govern myself by what I consider the general rule settled in England, which excludes the evidence. The evidence must be overruled.
The order, and also another were afterwards admitted, on the evidence of a person who had often seen the defendant write. A paper found in a trunk at the half way house between Philadelphia and Trenton, with the signature of E. Gleeson, not addressed to the prisoner, was offered in evidence. The court
. A question to a witness, which the law will not permit him to answer, as' if he be asked to state the contents of a record; or to an attorney to disclose the secrets of his client; or, as in this ease, whether his petition for the benefit of the insolvent law was not refused, and he remanded to jail upon the ground of his fraudulent conduct,—is improper, and the court will not permit it to be put. But if the question be such as if merely answered in one way would disgrace or crimi-nate the witness, the question is proper; because it is the privilege of the witness to- refuse to answer it, and not the law which forbids him to do so, as in the former case. But being a privilege merely, he may waive it,, or give the answer.
WASHINGTON, Circuit Justice, delivered the charge; and after summing up the evidence, left it to the jury to decide upon the guilt or innocence of the prisoner, as to the several offences charged in the indictments. He stated that the materiality of his declarations to a witness, that he was going to Johnson’s house, for the purpose of obtaining bail for his brother-in-law, Gleesou, which, contrary to his first impressions, he was now satisfied was proper evidence for the consideration of the jury (1 Starkie, Ev. 46-48, and cases cited), depended very much, if not entirely, upon the accordance of his subsequent conduct with thesé declarations. From that conduct the jury were to judge whether the prisoner was sincere in the avowal of his purpose in going, or- merely intended to serve a purpose, and to provide testimony in his favour in ease of need. If in the opinion of the jury the latter was intended, then the prisoner’s declarations of the motive which took him to Johnson’s, ought to be entirely disregarded.
The jury found the defendant guilty upon all the indictments.
NOTE. The weight of authority seems to be in favour of the doctrine, that a witness is not hound to answer a question which may render him infamous, or disgrace him, although it is not fully settled in England. 1 Starkie, Ev. 137, 145; 3 Starkie, Ev. 1742, note.
