State v. Candler, 10 N.C. 393, 3 Hawks 393 (1824)

Dec. 1824 · Supreme Court of North Carolina

10 N.C. 393, 3 Hawks 393

State v. Candler.

"J i From Buncombe. J

A wilness who has been convicted of forgery in Tennessee, is incom-peu ut In the Courts of North-Carolina.

A witness who. some years before, was much in the habit of receiving and paying away notes of a particular bank, and was aii attentive observer of such notes, is competent to prove the genuineness or forgery of a note on that bank, although he may never have seen the president and cashier write, and has never received any letters from them.

IvniCTMEN’!' for forgery- in the following words:

The jurors for die state upon thcr oath present, that Zachariah Candler and Elias Jones, both of the county of Buncombe, being evil disposed persons, and designing felonioush to cheat and defraud some person to the jurors unknown, on t.h-.- first dav of April, in the year of our Lord one thousand eight hundred and twenty-three, with force and arms, in the county of Buncombe aforesaid, feloniously did falsely make, forge and counterfeit, and cause and procure to be falsely made, forged and counterfeited, and willingly aid and assist in the false making, forging and counterfeiting a certain note commonly called a bank note, which said false, forged and counterfeited bank note is as follows, that is to say:

(Here follows a copy of the note, purporting to be a note of the Pal mers’ Bank of Virginia tor ten dollars.)

with intention to defraud some person to the jurors unknown, contra-* ry 'o the statute in that case made and provided, and against the peace and dignity of the state.

The second count was similar to the first, except that it charged an intention to defraud the president, directors and company of the Farmers’ Bank of Virginia.

On the trial below, before Badger, Judge, it was proved on the part of the state, that the note in question was found in defendant’s possession, together with paper and ether materials suitable for the fabrication of bank notes.

The state then called on a witness, Smith, to prove the note a forgery; he swore that for ten years he had been acting as a merchant in the town of Ashville; that during that period, and particularly during the first six years of it, he had received and passed away a lqrgs number of bills of the Farmers’ Bank of Virginia, as well as on the other banks of that state and this: that during that time more than five thousand dollars in bills on the Virginia banks had passed through his hands, but the particular proportion of the Farmers’ Bank he could not ascertain; it had, however, been considerable, and the greater part of the notes had been received and passed by him as genuine more than four years ago, and not one had ever been returned as counterfeit; that he had been an attentive observer of bank notes in general, and especially those of the Farmers’ Bank; that he had never, to his knowledge, been imposed on by a counterfeit; that he considered himself a competent judge of the notes of the bank in question, and if the notes which he had received and passed were genuine, this note was counterfeit. This evidence was objected to, but the Court received it.

Garth, an accomplice in the felony, was then called to prove the fact of forgery. He was objected to on the ground that he had been convicted of forgery in the state of Tennessee; and in support of the objection, a duly authenticated transcript of a record from Tennessee was produced, showing that one Barkley had been indicted, tried, convicted and received sentence for forgery. The identity of Garth the-witness, and Barkley the convict, was fully proved; and it was also shown that Garth had actually been whipped, placed in the pillory, and suffered the other punishment directed in the judgment. The Court held that the objection went to the credit of Garth, and not to his competency, and he was sworn.

The defendant was found guilty. The admission of the testimony of Smith and Garth formed the ground of a motion for a new trial, which having been refused, defendant appealed.

And when the cause was called in this court, Gaston, for the defendant, said, that in addition to the grounds taken for a new trial, he had also grounds on which to move in arrest. The Court then directed him to confine himself in argument to the motion for a newt rial first; whereupon he said, that Smith’s evidence was improper and insufficient to prove the forgery; evidence of handwriting, in civil cases, can he proved only by witnesses who have either seen the person write, or who have long been in the habit of correspondence with him. (1 Phillips Ev. 364. 1 Peake 154.) A less rigid rule does not prevail in criminal cases. (1 Chitty C. L. 580. 3 Ibid 1043. State v. Allen, 1 Hawks 6.)

Garth also was improperly received. The conviction of the crimen falsi in another state, it would seem, should, on the obvious suggestions of reason, render a witness incompetent. The material point is the conclusms ascertainment of the fact of the witness’s moral turpitude; it is of no consequence to us where it was first discovered; and if he was unworthy of credit in Tennessee, crossing the boundary line cannot make him próbus et legalis homo in North Carolina. Is not the fact here ascertained with certainty by this record, which it will be remembered, is entitled to “ full faith and credit” among us? (1 M‘Nally 206, 7. 1 Phillips 22, 23. et seq. Willes 667.)

The Attorney General, contra.

The objection to Smith’s testimony has been once con- . sidered by C. J. Marshall, in a case similar to this, and it was held not to be good. United Stales v. Holtsdaw,

(2 Hay, R. 379.)

Under the circumstances detailed by Smith, I think his testimony was properly received; for while it is distinctly admitted that, as a general rule, one shall not be received to prove signatures to a bank note forged, from the mere knowledge which he acquires in the ordinary money concerns of his business; yet if the nature of his calling be such as to render him necessarily very familiar with a species of paper alleged to be forged; if he has. dealt much in such paper years ago and none of it has been returned to Mm as spurious, he possesses a knowledge on the subject little, if at all, inferior to that which is derived from correspondence with an individual. This distinction will be found to be recognized by this Court jn Mate v. Mien, (1 Hawks 6.)

There is also another distinction which will be found to exist in the hooks. There is a difference between examining a witness to prove whether a certain signature be that of A. B., and examining a witness to prove whether the líame A. B. appears to him to be genuine. In the first case, it is a general (not a universal, rule, that the witness must speak from having seen the person write, or from having corresponded with him; in the last case, the question is one of skill, addressed to a witness who is to speak from a knowledge derived from long inspection of writings, whether there be internal evidence, such as painted letters, &c. which show the writing not to have the ease and freedom of a genuine signature. All the cases in which clerks in the general post office and others, have been SAVorn to prove signatures, &c. made in feigned hands, show this distinction; and in this case Smith expressly swore that he deemed himself a competent judge; the measure of his skill was for the jury to ascertain after hearing from him what his opportunities of becoming skilful had been. (1 Chitty C. L. 567, 8. Ibid 581, 2. Ibid 619, 20. Norris’ Peake 156. 4 Term R- 497. 4 Esp. Cases 117.) As to Garth, his evidence was properly received. (Norris’ Peake 200. Commonwealth v. Green, 17 Mass. B. 515.)

Gaston in reply.

The inquiry as to feigned writings is not involved here, for Smith pretended to no skill of this kind, he spoke only of his ability to determine the genuine character of these bank notes from havúng received and passed many of them. The evidence of Smith, if at ail admissible, could only have been so as corroborative of that given by some other witness, it was not good in chief; here he was the only witness sworn to the point.

Taylor, Chief Justice.

That rule .of the common law, which renders a person incompetent to give evidence in a Court of justice whó has been convicted of an infamous offence, is not the consequence of an artificial system, or a state of society peculiar to certain communities,* but is founded in the constitution and nature of human associations generally, and is dictated by the necessity, universally felt, of maintaining the purity of the institutions through which justice is administered. A man- who stands convicted of falsehood, by a tribunal having competent jurisdiction of the offence, is deprived of the common presumption, raised by law in favor of witnesses, that they will tell the truth; he can no longer he confided in, when he deposes to facts and circumstances affecting the rights of others, and therefore the law, that the stream of justice may not be polluted, will not suffer such a witness to he heard. The objection attaches to his state or condition, which, whenever it is necessary to he considered in relation'to its influence on the sccui’ity of others, may he taken with propriety, if no technical rules interpose to'prevent it. For-the subject itself is of a moral nature, independent of the conventions of men; and as truth and justice are not confined by geographical limits, hut are coextensive with the concerns and relations of civilized communities, the crime which, in reason, renders a witness incompetent in one country, must do so in all. The principle of the exclusion is universal, and ought to be binding every where, though it may have peculiar modifications stamped upon it, according to the usages and manners of different nations. In some shape or other, witnesses have been deemed incompetent on a conviction of certain crimes, in every civilized state, a coincidence of sentiment and practice which can only be ascribed to a correct influence from a principle of natural justice, In the civil law, a great degree of strictness prevailed with respect to the competency of witnesses. Its rules excluded many persons for objections, which, in our law, are confined to the credibility. They rejectee! not only all persons who were rendered infamous by any condemnation, but also those in whom there was a sus-picjon 0f the state of good fame, by an order for his apprehension. They would not even allow fathers, mothers, or children, to giv.c evidencie against each other. (1 Fo-thier 519.) They even rejected persons' of particular occupations, and whole tribes of people. (Calvinus. 1 Jllkyns 37.) But the strictness of the rule of that law was relaxed-according to the necessity of the case; and its extreme rigour rendering it, in some cases, insufficient to the detection and punishment of crimes, the Courts were compelled to prefer practical expedience to the vain attempt at theoretic perfection. Thus we find that a modern writer on the imperial criminal law, as practised in Saxony, states that even incompetent witnesses are sometimes admitted, if the truth cannot be got at, and this particularly in facts and crimes which are of difficult proof. (Gaill,. lib. 2.) The superiority of our law consists in its laying down the rule, with its proper exceptions and limitations, and leaving nothing to the discretion of the Court! A concurrence between the two systems on general principles is thus shown; hut it results from it, that it would he embarrassing to decide on the competency of a witness who had been declared disqualified in a state where the civil low prevails. Wherever the common law forms the basis of the jurisprudence of a state, and a witness is disqualified either by that or by statute, of which proper evidence is exhibited to a Court here, I can see no reason wherefore the witness shall not be excluded. It is admitted fully, that wherever the elementary winters on evidence, discourse on the necessity of producing the record of conviction, in order to exclude a witness, they mean a record of some Court within the kingdom, of the existence of which the Court is to decide on the plea of nvl diet record; such a record, in other words, as the Court Height order to be brought before them by a certiorari. A conviction in another country was not contemplated, because the evidence of such conviction is not a record, it is only prima facie evidence of the fact, arid must be judged of by the jury, in which case the competency of the witness is not questioned. Since the union between England and Ireland, an Irish judgment is a record; yet not being returnable into the King’s Bench, and only proveable by an examined copy, on oath, the truth of the evidence must be tried by the jury and not by the Court. (5 East 473.) Considering the subject in reference to technical rules, I should believe that an English Court of Justice would either not notice a conviction in another country, or leave it to the jury as an objection to the credibility of the witness. But the constitution of the United States, and the act of congress made in pursuance thereof, have changed the law in this respect, and furnished satisfactory ground for the exclusion of this witness. The act-of congress of 1790, ch. 11. declares “that the records and judicial proceedings, authenticated in the manner prescribed, shall have such faith and credit given them in every Court within the United States, as they haré, by law or usage in the Courts of the states from whence the said records are or shall be taken.” The faith and credit which would he given to this record in the state of Tennessee, must also be given to it in this state; and being exhibited here, it shows that Garth has been convicted -ef a crime which, according to the laws of both states, render him an incompetent witness. When the act of congress made ifra record, and prescribed the manner in which it should be authenticated, it is equivalent to a record proved by inspection of a Court of its own record, •or an exemplification in any other Court of the state whore the judgment vais pronounced. If this question were doubtful to me, I should he led to the same concia<sion by reflecting upon the many evil, inconvenient and unjust consequences of an opposite one; always bearing in mind the rule laid down by Vims¡hnrr7é^ “-when law is known and clear, the judge must determine as- the ^aw without regard to the inequitableness or inconvenience. These defects, if they happen, can only be remc-¿je(j ]jy parliament.55 That a witness, who, if he were offered in Tennessee, to charge another with a dollar, should be rejected there, and he admitted here to affect life and character; that he should be received here in the state Courts and rejected in the federal Courts; and, that in a country where so many motives impel the citizens to explore new regions, they may be followed and judicially destroyed. by persons upon whoni the law ’of their native state has set a note of infamy; are effects of so mischievous a character as to be averted, if legally possible. On the other question, relative to the admissibility of Smith, my opinion coincides ivith that of the judge . who tried the cause. It appears to me that the' witness’s knowledge of the hand writing acquired in the way he describes, is as much to be relied upon as if derived from a correspondence, and approaches nearly to that obtained from having seen the party write. It is scarcely possible,, in the nature of things, that if any of the notes received by the witness, throughout so long a period, had been counterfeit, they should not have been returned. Their hot returning shows their, genuineness.

Henderson, Judge.

After much- agitation and diver--sity of opinions, in our courts of justice, it is now, I believe, the settled law, as understood both in the Supreme Court of the United States and of this state, that by virtue of the first section of the fourth ai’ticle of the constitution of the United States, the judicial proceedings of one state are conclusive evidence of the facts which they affirm, when offered as evidence in other states; and when authenticated in the manner prescribed by the congress of the United States, the Court, and not the jury, is the trier of the fact, when the issue is directly upon them. When .the issue is not directly upon them, they, like our own judicial proceedings, go to the jury. The issue in this case being directly upon the affirmation of the record, (the moral depravity of the witness,) goes to the Court, and the record directly establishing that fact, which by our law renders him incompetent, he should have been rejected. In doing this we are not enforcing the penal laws of other states, nor the penal laws of our own state, for this is inflicting no punishment on the witness; but are, simply carrying our own laws into execution, which declare that persons who have been guilty of the crimen falsi are entirely unworthy of belief; and we take as evidence of such fact the judicial proceedings of our sister state, which the constitution of the United States declares shall have full faith and credit in each state. If the exclusion of men convicted of such acts from giving evidence were a punishment, then he ought to have been received, for truly he has not offended against the laws of this state, and we have, therefore, no right to punish him. But it is a duty which we owe to those who are to be affected by the judgments of our Courts, that the Courts should be kept clear of such depravity, and that no pro-eeedings should be founded upon it. It is asked, what if the governor, or proper authority of Tennessee, should have pardoned him? That question has not arisen in this case; but as we trust to the judicial proceedings of Tennessee to fix the fact of his guilt, perhaps we should also trust to the pi'oper authoxdty in doing it away for some proper cause; for tliat thex’e was a proper cause is a legal presumption, which cannot he conti’overted either here or there. It is farther said, that no such precedent can be fouxxd in the English decisions. It is admitted; for they do not give full faith axid credit to the proceedings of any Courts but those of their own country; both the laws and proceedings of other countries are tided as facts by the jury. The question, therefore, cannot be brought before the Court; and even if the witness should admit his guilt in England, or his conviction in a foreign country, the admission is not conclusive evidence of the facts. It does not import verity, it may be false, and the Court cannot try it. The testimony must, therefore, go to the jury, who appreciate it as they think proper. The fallacy of the opposite reasoning, I think, is, that it is supposed that it is the conviction which disqualifies; whereas it is the crime. The conviction establishes the fact of criminality in such a manner that it cannot he controverted; and if it cannot be controverted, the witness is not to be heard. And a conviction being the only method by which .the fact of criminality can be so fixed that it cannot be denied, and facts which cannot be controverted being at once submitted to the Court in order that the legal inferences may be drawn, (for why send a fact which the law will not permit to he controverted, to triers of facts, win, will -be bound to return it in thc :same state to the Court, entirely unchanged); this, I say,- has given rise to the opinion, that it is the conviction which disqualifies a witness, whereas it only incontrovertably establishes the fact of criminality, and it is the criminality which excludes him. For these' reasons I think there should be a, new trial. :

Judge Ham differed with his brethren on one point in the case, and deliverd his opinion as follows:

T confess I entertain doubts in this case; hut I am father inclined to the opinion that the Court was right in not rejecting the witness (Garth) as incompetent 1 think that in England convictions only within the kingdom exclude witnesses. It is so with respect to convictions 'or attainders for.treason, and there seems to bo no discrimination in that respect. Here, I think too, that convictions within the state only, can exclude testimony, although since the adoption of the federal constitution we give faith and credit to the records of our sister states.. Do we allow to them the effect contended for?’ If convictions within.- the state only, disqualified before that timé, will that clause in the constitution which gives full faith to the records of each' state, alter our municipal law as * to the rule of receiving or rejecting witnesses? If it was a rule before not to reject them, when not -ctjnvicted in the state, shall we now reject them? A conviction may not disqualify a witness in the state where it takes place, and the law's of which have been violated; but may disqualify him in another; the laws of which have not been violated. A pardon may be obtained in the state where the conviction takes place, but it cannot be granted in another, because the laws have not there been violated.

I regret that I have not the case of Commonwealth v. Greene, (17 Mass. Rep. 515.) and the case of Clark’s Lessee v. Hall, (2 Har. and M‘Hen. 378.) of which notice is taken in Norris’s Peake 200. The Court, in the first case, wTas lor receiving the testimony, in the other for rejecting it. The inclination of my mind is, that the judge in this case, was right in receiving the testimony.

With respect to the competency of the witness Smith, no objection is raised either on the ground of interest or infamy; but on the ground of ignorance as to facts of which he was introduced to give evidence. The charge against the prisoner is of such a nature as that it cannot be proved by positive testimony, and it is argued that if can bo established only by persons who are acquainted with the hand writing of the president and cashier by having seen them write, or by persons w'ho have acquired acquaintance with their hand writing by having carried on a correspondence with them, by receiving letters from them. If these were the only \Vays in which that knowledge could be acquired, the argument would be conclu, sive; but this does not appear to pic to be the fact. A person wdio has been employed in a banking house where much of the paper of any other bank had been received, has an equal opportunity, if not a better, of acquiring a kpowdedge of the signatures of the president and cashier df that bank* And the same thing may be said of a person through whose hands a great deal of the paper of any hank has passed, and who has been a strict observer of . such paper; for there is no magic in the circumstance that such knowledge was acquired in a bank: if .it is equally well acquired elsewhere, it is equally good. It is the province of the Court and Jury to weigh well the evidence, and ascertain whether it comes from persons who possess that knowledge. I think a person who receives and pays away hundreds of bank notes, has as good an opportunity of judging of the signatures upon them as if he had received a few letters from the persons whose signatures they arc. It is said these notes may be counterfeit ones; there is a bare possibility of that; there is much of moral certainty that the great bulk of them are genuine. The argument ah inconvenienti should not be overlooked; for in very many cases, if such testimony is rejected, the guilty will escape; for probably no person can be found who can establish the charge in the way insisted on. However, if the law is so, it should be my duty to submit. But the case of United State's v. Holtsclaw, (2 Hay. 379.) is an authority in-favour of my' argument; and one, too, on which (when it is remembered by whom it was decided) I may repose with much safety. I think the judge did right in not rejecting this witness.