State v. Twitty, 9 N.C. 248, 2 Hawks 248 (1822)

Dec. 1822 · Supreme Court of North Carolina

9 N.C. 248, 2 Hawks 248

The State v. Allen Twitty

From Lincoln.

Upon an indictment for uttering forged money, knowing it to be forged, evidence may be received of former acts and transactions which tend to bring home the scienter to the Defendant, notwithstanding siich evidence may fix upon him other charges beside that r>n which he is tried.

An affidavit for the removal of a cause, which does not set forth the reasons of affiant’s belief that justice cannot be done in the county from which it is removed, is insufficient.

An indictment for forgery should not only set forth the tenor of the bill or note forged, but should profess so to do.

In an indictment under the act of 1819, to punish the making, passing. &c. of counterfeit bank notes, if the note alleged to have been passed be of a bank not within the State, the indictment should aver tha< such a bank exists as that by which the counterfeit note purports to have been issued.

The Defendant was indicted under the act of 1819, more effectually to punish the making, passing or attempting to pass counterfeit bank notes. The indictment contained two counts; in the first the Defendant was charged with passing, as true, to William Erwin, “ a “ false, forged, and counterfeited bank note,, purporting if to bo a good, genuine note, issued by order of the Pre-Si sideut, Directors and Company of the Fanners’ Bank <e of Virginia, which said false, forged and counterfeited « note is in substance as follows, to wit.”- — The note was then set out in the indictment, and. appeared to have been issued by the President, Directors & Co. of the Farmers’ Bank of Virginia, payable to “ Ch: Johnson.”

The second count charged the Defendant with an intent to defraud the corporation of the State Bank of « North-Carolina,” and with passing, as true, to William Erwin, (who was agent of the said corporation,) “ a false, forged and counterfeited bank note, purport- “ ing to be a note issued by order of the President and *s Directors of the Farmers’ Bank of Virginia, which said “ note last above mentioned, is in substance as follows, ts to wit.” The note as set out in this count appeared to have been issued by the President, Directors & Co. of the Farmers’ Bank of Virginia, payable to “ C. IT. John-»e sion.” On the trial below, the hill offered in evidence shewed the name of the payee to be spelled C. II. Johnston. It was objected by Defendant, that there was a variance between the bill as set out in the indictment and that offered in evidence, and that therefore it should not be introduced, but the Court overruled the objection, and the bill was read to the J ury.

The passing of the hill by the Defendant to Erwin, as agent of the State Bank, was proved, and it was also proved, that the bill was originally for live dollars, and had been altered to a bill for fifty. In order to shew that Defendant knew the bill" to be counterfeit, (a fact charged in tiie indictment, and material in constituting the crime under the act) the State called on witnesses to prove acts and declarations of the Defendant, at different periods previous to this transaction, in relation to other counterfeit bank notes, as circumstances to shew his general acquaintance with bank notes, and his skill .in ascertaining whether they were genuine. The evidence was objected to, on the ground that it must he cob-fined to notes of the same kind, or purporting to lv^vc *JCGn issued by the same bank as the one now in question. The Court refused so to restrict the evidence. A wit-nesSj Terrell, then proved, that twenty years or more ago, he was intimate in the Defendant’s family, and Defendant had on one occasion, taken the witness up stairs, and shewed him in a chest a large bundle, apparently of bank notes, in sheets and not signed, and observed to him that they were remarkably well executed, and that a young man of character might make his fortune with them. It was further proved by two witnesses, Dalton and Lynch, that a tree had been seen in a secret place, near Defendant’s house, with a hole bored through it, and some small flat blocks near it, and at the same place was a churn and a quantity of paper in the state of pulp: that the Defendant had said that he had a way of making money, not however from his farm. Other witnesses proved, that the Defendant had been repeatedly seen at various times in the possession of large quantities of bank notes, and that he had also declared he was in the habit of making spurious money ,* that he could at any time procure counterfeit money that could not be detected, and that the proper mode of altering bills was to extract the impression of the number from the bill, and to make a new number with a different plate. To witnesses with whom Defendant had been intimate, he had made these declarations, and in paying one of them money at different times, he had said that particular bills, which he exhibited, were not good, and that therefore he would not pass them to him. Mr. Roane, a gentleman of the bar, testified that shortly after his coming to the bar, and when almost a stranger in the country, he had on some occasions been employed by the Defendant to conduct suits for him, and that it was the habit of the Defendant, after talking to the witness relative to the suits, voluntarily to make remarks as to the suspicions entertained of his (Defendant’s) counterfeiting j that on one occasion,, he said he could procure the services of master workmen, and to convince the witness, produced a letter, which he said was from a workman who bad quarrelled with his employers, Murray, Draper, Fairman, & Co. and who had offered to execute plates for the Defendant, and as a specimen of his abilities had forwarded to the Defendant a bill for five dollars $ Defendant then took a bill out of the letter, said it was a counterfeit, but notwithstanding it was very well executed ; the Defendant also said that he was in the habit of making and passing bad money. The agent of the State Bank proved, that in the year IS 14, when counterfeit notes of the Bank of Cape-Fear for three dollars, signed with the name of John Ilogg as cashier, were in circulation, he had refused to take any notes for three dollars on that bank: that having declined receiving one offered by some person, the same note was brought back to the bank in a few weeks, accompanied by a letter from the Defendant, which informed the witness that he {t might receive this note, for none of the three dollar notes with the name of Joshua Volts were counterfeit,” and added that the information might be useful to wit - aess.

The Court, in addressing the J ury, called their alien lion to the principle upon which most of the evidence offered had been permitted to go to them j that it being incumbent on the State, not only to prove the passing ol" the bill as charged, and its falsity, but also to bring home to the Defendant the knowledge of the bill’s being counterfeit, and the intent to defraud, as charged, in passing it 5 they were to look more particularly to the part of the evidence relating to the passing of the note, and more immediately connected with it, but that in ascertaining the knowledge of the Defendant that the note passed was counterfeit, they were at liberty also to look to the other acts and declarations of the Defendant, as going, in connection with the evidence more immediately relating to the transaction, to shew them how fax* he might have been deceived as to the genuineness of the n0*e *n *luestion, or, on the contrary, as going to satisfy them that he must have been so well acquainted with j,ank paper that he could not well have been ignorant of the true character of this bill. That in relation to these acts and declarations of the Defendant, the more distant and detached they were in point of time, the less relation they had to the transaction about which the Jury were enquiring', and the less weight ought they to have in forming their opinion, and more particularly in relation to the evidence of Terrell, Dalton and Lynch ; that circumstances so detached must be exceedingly light, and that no part of the evidence in relation to the Defendant’s previous conduct or declarations, was to be considered by them as offered for the purpose of proving that he had committed the crimes or acted improperly on other occasions, but only as circumstances which might aid the Jury in ascertaining whether the Defendant knew the note in question to be counterfeit at the time he passed it.

The Jury found the Defendant guilty; a motion was made for a new trial, which was refused, and the Court pronounced judgment against the Defendant, from which he appealed. And now the Court requested the Defendant’s counsel to confine his remarks to the grounds on which he relied for a new trial.

Gaston for the Defendant,

adverted to the distinction found in the books between the tenor and the substance of an instrument, and insisted that in indictments for forgery and for sending threatening letters, the instrument must be set out in words and figures, in other words its tenor must be given — (2 East’s F. C. 975, 982 — 1 Chitty G. L. 233-4 — 1 East’s Rep. 180, in notes — 2 TV. Black. Rep. 787 — Lyon’s case, 2 Leach, 696.) As it was in this case necessary to set out the tenor, any variance between the instrument offered in evidence, and that set forth in the indictment was fatal, ami the paper should not be road in evidence to support the indiclment. The differ-t'.iice in the names Johnson and Johnston was, such a variance — (ñ Chilty C. L. 1040 — 2 Hawk. V. C. chap. 46, sec. 36 — 1 Chilly Plead. 307 — 9 East’s Mep. 188 — S Bos. & Full. 559.) In enquiry into variance, whether the meaning he changed or not, is immaterial. — Queen v. Brake — (Salk. 6C0.)

He then referred to the case which is reported with a qvere, and which is the foundation of the modern decisions respecting variance, establishing the rule as it at present exists, where the words are idem sonans — (2 Sira. 889,) and referred to a collection of cases in 1 Strange, 231, where variances less important than the present were held fatal, and cited also 10 East’s Mep. 84, and 1 Leach, 389.

The admission of the hank note in evidence was, therefore, one ground for a new trial.

V second ground wras, that evidence to prove that the Defendant had, for a series of years been a counterfeiter, and conversant with forged notes, wuis inadmissible to establish the knowledge of the Defendant as to the spuriousness of the note in question. The general doctrine, it was said was, that evidence is inadmissible to shew a general disposition in a prisoner to commit crimes similar to that with which he is charged — (1 Vhil. 126 to 186.)

The only cases which seem to impugn this doctrine, are King v. Wiley — (1 Bos. & Full. JV*. R. 92,) and a case in 1 Camph. Rep. 321. In the case from Campbell, evidence had been received that the prisoner had recently been concerned in uttering other notes of the same kind, but the utmost extent to which these cases had carried the doctrine was this — ads may he shewn which directly prove that the prisoner is guilty of the charge for which he is tried, notwithstanding such acts may also prove indirectly that he has been guilty of another crime.

If the evidence here has been properly received, it is in effect, bringing into view the Defendant’s character contrary to his will, and even more, for instead of prov-*nS general character, which is the utmost the law in any case allows, it is admitting evidence of specifick acts.

The Attorney-General, and Wilson, Solicitor, for the prosecution.

The words used in this indictment, “ in substance, are sufficient, for there are no certain words of necessity to be used; but the rule is, that an instrument must be so set forth, that the Court may see it is a paper, the making of which is prohibited by law. The indictment here does not need such precision as it does in England $ the strictness in England is in favorem vitae, but our law does not punish the crime with death ; but if tenor were required, a fac simile is not necessary. In cases where tenor is set out, a literal variance does not vitiate, unless the meaning is changed — (1 Chitty C. L. 234-5.) And in indictments for forgery, the omission of a letter in the description of the instrument has been held to be immaterial — (2 JSast’s C. L. 977.) The act of 1819, on which this Defendant has been indicted, is a copy of the statute 45th Geo. 3d, and on that statute it has been held, that if the instrument as described be within the meaning of the statute, a slight variance is immaterial — (3 Chitty 1040-1.) The Court below did right in receiving the paper in evidence. As to the second ground, on which it is said a new trial should be granted. The evidence was properly received, for though the general rule is, that an admission, even by a prisoner, that he formerly committed offences of a nature similar to that for which he is indicted, and that he has a tendency to such practices is not admissible evidence ; yet where the knowledge of the Defendant of the nature of his conduct is the point in issue, as when he is charged with uttering, a forged note, knowing it to be forged, evidence of his having committed a series of acts of the same description, may be received as presumptive of knowledge — (1 Chit» íy C. L. 564.) The reason of this dcpaHure from the general rule is obvious. The general rule is made to apply to cases where ads come in que.dioo, and with equal wisdom this exception is made for i uses where motives come in question — (1 Phillips’ Ev. 137.) The cases which have already been referred to by the Deten» slant’s counsel in JWh? 'Reports and in Campbell, will, upon examination, be found to support this position, and it is worthy of remark, that the case in Campbell, was on the very statute of which ours is a copy. The following additional authorities on the several points in the case, were referred to — (1 C!dtly C. L. 238 — 1 Taunt. 101— Hale's P. C. 193 — 10 East, Shakespeare’s case — 8 Mass., Hep. 107 — Ibid, 59 — 2 Ibul, 373 — 3 Ibid, 85.)

Gaston in reply,

observed, that the strictness of the rule in England was not in favorem vibe, because it existed always, before forgery was a capital felony. lie insisted on his former grounds, cited 2 East’s C. L. 975., Mason’s case, and said, that at all events, if such testimony were proper, it should not have been received ore both counts, for it surely was applicable to that only which described the instrument truiy, but it had been received as applicable to both, and the Defendant had been convicted of both. He commented on the cases cited from Mass. Meports, and relied on 8 Mass, as an an-ihority to support him.

The Court having expressed a wish to hear the Defendant’s counsel further on the reasons in arrest, which he stated he should urge should a new trial he refused,

Gaston remarked on a variance which he hid not before mentioned, that in both counts, the note purported to be made payable at Linchburg, when the note produced appeared to he made payable at Lynchburg. And he urged the following reasons la arrest of judgment.

1st. It did not appear that this indictment was ever found by a Grand Jury. The record set forth, that on the fourth Monday of March, 1821, at a Court held in Lincolnton, before Judge Paxton, certain freeholders, to-wit, John M. .Greenlee, foreman, and others, (naming them) were sworn as a Grand Jury, and returned into Court an indictment in the words following, to-wit, (and here was set forth the indictment on which the Defendant was tried,) it then proceeded in these words, “ on “ which day, &c. a bill of indictment indorsed as fol- “ lows, to-wit, State v. Allen Twitty. Indictment. “ Gov’r. Pros’r. William Erwin, witness. March “Term, 1821. Sworn in open Court' — J. Paxton, “ Judge, J. Wilson, Sol. A true bill, J. M. Greenlee, “ foreman j was returned into Court by the Grand Jury “ a true bill.” This latter statement of the record, it was contended, did not apply to the bill on which Defendant was tried.

2d. From the record it appears, that before the arraignment of the prisoner in the county of Burke, the cause was removed to Lincoln upon the affidavit of the Solicitor, expressing his belief that the State could not have a fair trial, but assigning no reason for that belief. Such an affidavit will not justify the removal — (2 Sew Code, 1139.)

The indictment is defective in several particulars.

1st. The counts do not undertake to give the tenor, or set out the words and figures of the bill: this is necessary. Mason’s case, (2 East’s C. L. 975. — lb. 983.) Lyon’s ease, {lb. 933 — 1 Chit. C. L. 230 — 6 East R. 417 — 1 East’s S. 180.) Th(¿precedents in forgery establish the same doctrine — (4 Wentworth, 23, 25 — 6 Wentworth, 371.) An indictment drawn as this is, does not undertake to giv® the tenor. King v. May — {Donglas.J ■

2d. The indictment states that the note was issued by order of the President and Directors ,i the note as set on-appear:- to bavo been issued by order of tbe President, Directors and Company. There is a repugnance.

;>d. The indielmcnt is founded on the act of 1819, which speaks only of bo fes os* orders issued by any Bank w*ibin this State, or within any of the United States, or within any of the territories of the United States. It is a rule applicable to all indictments on statutes, that the indictment must contain such a statement of facts as brings the case within the statute. Now the Farmers’ Bank of Virginia is not created by any publick law of tills State, our Courts then cannot judicially know its existence; the indictment, therefore, should have averred that such a Bank did exist in Virginia, and that auTineu: should have been proved — (1 Cldlty C. /» 1041 —2 East*is C. L. 977.)

4th, The indictment charges the Defendant with an intent to defraud “ the corporation of the State Sank of iS North-Caroliua ff there is no such corporation in the State.

5th. The averment of the Defendant’s knowledge that tbe bill was counterfeit, is entirely separate and distinct, and in not in the second couui connected with the assertion in the commencement, that ‘‘the Jurors for the “State upon their oath prei/mt.”

(5th. The law requires at. indispensable in every indictment, certain technical words of art — (JIawkins£ book, ch. 35, sec. 50.) In felonies the technical wo.-d is feloniously, and in this indictment it should have been applied to the ad done — (3 Chilly C. L. 475 — 3 Mass. 'Rep. 254.) It is used but once in the indictment before the Court, and then in the commencement of the count, in charging the inienl, “ inicnilmp; feloniously to defraud

If the Defendant on this indictment cannot he punished for a felony, the Court cannot on it, render judgment against him for a misdemeanor — (5 Mass. Rep. 954 — 7 lbid} 24 5.- — 1?, strange, 1133.)

Hall, Judge.

The first question arising in this case is, whether a new trial should be granted on account, of the. introduction of improper testimony on the. trial below. inclination of the mind of a majority of the Court is, that it should not, and that impression is produced from the principles laid down by Foster, in his treatise on high treason, áiñ-6, and the. cases read from 1 Bos. & Pull, new series 92, and 1 Campbell 323. These authorities seem to go the length of proving, that where, an offence consists in a knowledge of the thing done, to be unlawful, evidence may be given to bring home that knowledge, to the prisoner, although a disclosure of other facts and transactions for which the Defendant is not then on trial, may be the consequence. But such disclosure should not prejudice the prisoner; his moral character should be sacred under the maxim, that every citizen is presumed to be innocent until the. contrary appears, and that presumption ought to be done away only by evidence proving circumstances connected with the commission of the offence for which the prisoner is then on tria!. For in- tan re, if it were given in evidence that the prisoner had counterfeited bank notes, this evidence might be used to shew, that in all probability, he had a. knowledge that the note which he was charged with passing was a counterfeit note ; but not to shew that because be was wicl.ed enough to forge bank notes at one time with an evil intention, it was to be presumed that he was wicked enough at another time knowingly to pass us good a counterfeit note. The quo animo with which lie passed the note is to be collected from the concomitant circumstances. The ability to commit the crime, may be shewn from other distinct facts j the intention with which the. thing was done (charged as a crime) must be prov ed only from all the circumstances of the case,, which attended the doing it. For these reasons, I think a new' trial should not be granted.

One question that is brought before the Court, by way of arresting the judgment, Is the affidavit made for the vi .■'[! of the trial of the indictment from the comity of B< ;« the county of Lincoln. Hie first act on tisis sal.h’rf was passed in the year 1806, ch. 693, sec. 12. Tlu í ;.df i declares that a removal shall take place when a p£ <:;j states on oath “ that íbero are probable grounds ** to believe that justice cannot be obtained in the county £: in which,” &c. In the year 1808, auothe. act was passed on the same subject, ch. 74J. That act declares., Si that no cause, civil or criminal, which is or may be i4 pending' in any of the Superior Courts in this State, “ shall he removed to the Superior Í ouris of any other “ county, unless on oath made, in which the facts vvhere-on deponent founds his belief that justice cannot be is obtained in the county where the suit is pending, shall “ be set forth, so that the Judge may decide upon suds i<s facts whether the belief is well founded.” The affidavit for removal in this case, states that deponent believes that the Slate cannot have a fair am! impartial trial iu the counts/ Burke. I think this affidavit falls short of the. act of 1808, because the facts on which deponent founds his belief are not .set forth; of course the Superior Court could not deckle upon them. It was that the Court might have it in its power to do so, that the act of 1806 was amended by the act of 1808. The prisoner had a right to be tried in Burke, where the offence is charged to have been committed, unless the trial was removed to Lincoln in that way (and in that only) which the law points out. The affidavit for removal did not set forth the facts, on account of the existence of which, the trial was prayed to he removed; I think the objection founded on that omission a good one. If such facts had been set forth, the Judge of the Superior Court, and. he alone, must have decided on them.

Another objection is made to the indictment, and is drawn from the act of Assembly on which this prosecu - tion rests. The act of 1819, ch. 994, declares, that if any person shall pass any false, forged or counterfeited bill or note, purporting to be a bill or note isstsul by 0l'(-ei' °f the President and Directors of any bank or cor-por&iion within this State, or any of the United Suueo or territories ilmvof, every person so offending shall, &c. The charge here is, that the prisoner passed .1 counterfeited bank note purporting to be issued by the President, Directors & Co. of the Farmers’ Bank of Virginia, without setting it forth or making any averment that there was anty law in Virginia establishing or creating such hank, or without averring that such hank had any legal erJsíence» The hanks of this State one their existence Í» nubile laws, of which we are bound ex officio to take noycc j hut the laws of Virginia as to this purpose are foreign laws, and must be made to appear by proof. I do not think that the Legislature intended, by this act, to guard against the counterfeiting or passing the paper of voluntary, self-created unchartered corporations or banks, hut left the punishment of such offences to the law as it siood before with regard to other forgeries. But as to shis objection 1 give no positive opinion.

It has also been objected, that the note shewn forth in evidence, is not the same as the one set forth in the first count, because the one set forth in the indictment is payable to Ch: Johnson, and the one offered in evidence is payable to G. II. Johnston. I am inclined to think the variance fatal as to that count. Other objections have been taken in arrest of judgment, but I deem it unnecessary to consider them in detail, because of the. reasons already given in respect to the objection made m the affidavit of removal. I think the judgment ought to be arrested, and not pronounced by the Court below " ■ V the prisoner.

Henderson, Judge.

Í agree with Judge £L _J ; : £ the evidence was properly received. I also agro& him, that the affidavit for the removal of the cause was; insufficient, in not stating the grounds of the deponents. belief that a fair and impartial trial c»u!d not be had jn the coumy of Burke, according to the express directions of the act of 1808. But bad any grounds for such belief been contained in the affidavit, this Court could not in-terfore, although it might think that the grounds were insufficient: for it is matter of discretion. Therefore, the trial in Lincoln was corain non jiidice, and no judgment can be pronounced thereon.

It is objected, that it should have been alleged to be a note of a chartered or incorporated bank within this State, or one. of the United States, or one of the Territories thereof lj but I am of opinion that the word hank, in the act of 1819 under which the Defendant is indicted, means an unincorporated or unchartered bank as well as an incorporated or chartered one. For to the establishment of a bank an act of incorporation is not absolutely necessary, it may be established by an individual or a private association of individuals. An act of incorporation is necessary only for the purpose of conferring corporate rights. It is without it a hank. 1 am the moro confirmed in this opinion, by the fact of the Legislature’s being apprised of there being many uuchartercd or unincorporated banks within the United Slates; and also bj Coe words of the act, which are, bank or corpora!ion j)ilhir„ the State, or any of the United States, and not')/' the State or any of the United States. Nor do 1 think the words bank and incorporation are used a- lynoni-siious terns, for the legislature was also a • ..ce that Ui*»« weiv. .wporatious within the United i■ : fo^r inm/rpor^ted as banks) which iscu" r ' * ' -idge Company ir D-eorgia and the l.U'.-- 1 v .r'pa .' r’ New-York. Ac me saw:'5 lime, f ■ C- : •Lett then wrist be an averment in this ease thi-d •'' >. such a bank as the Farmers’ Bank of Virginia, " passing of a note which r^on its face purports C; C. sued by a bank which in fact has no existence, is not an offence within the act; and as every thing which is re-qulred to bo p: -V'l upon the trial must be averred, a nothing else is 'essary, it follows that it should ... averred $ but ? uk in this case it is as erred. ii s that i Defendant passed a note purporting be issued by the resident, Directors and Company of the Farmers’ Ba ,k of Virginia. To support such a charge, it must be shown that"there is such a bank as the one mentioned. I therefore think the indictment is not defective in this. I think the indictment also should not only have set forth the tenor of the bill, but have professed so to do. For the verdict of the Jury can only affirm the charges in the bill, and without such charge the Court cannot judicially know that. it is the tenor. In this case we are told in the bill, that it is the substance only — that substance (for aught we know) may differ fji'om the tenor.

There are many other objections taken to the indictment, but it is unnecessary to notice them, as I am well satisfied that the cause was improperly removed from Burke to Lincoln, and that the trial in the latter county was a perfect nullity. Therefore no judgment can be pronounced.

I wish it to be understood, that I give no positive opinion on any of the objections raised on the motion in arrest of judgment, except the removal of tills cause from Burke to Lincoln.

Taylor, Chief-Justice.

After an anxious consideration of this case, my opinion is, that some improper testimony has been received, and that a new trial ought to he awarded. It will be admitted, that the proper object of evidence is * ■ ascertain the truth of the fact put in issue 5 and that evidence admitted on any point not put in issue, has a tendency to surprise the accused, or to effect his conviction by the force of prejudice. The rule of rejecting all manner of evidence in criminal prosecutions, (says Justice Foster,) that is foreign to the point In issue, is founded on sense and common justice. For no man is bound, at the peril cf lift or liberty, fortune or reputation, lo answer sí om*e and «¡¡¡nqiaml for every art ion of his life. Few even of the «rus of men would chose k> be put to it. Our Bill of lights has endeavored to guard against the mR":h!ef, by providing that in. criminal prosecutions, every man has a right to be in-l.brnr'd of the acraeaticii ¿'gainst him, and to coni rout the accusers and witnesses with other íesínnony. The latter part of the privilege Is ruavidUng and delusive, unless the first be distinctly observed. The charge against the prisoner here is altering a , rged bank note, knowing it to be forged ; the essence cf the crime consists in the knowledge of the accused, •riihoui which the act of uttering a forged bill is innocent, and 1 admit fully, that any proof which tends ¿Irectiy io prove this knowledge, is proper, although It should involve other crimes column tod by the Defendant. This is the extent to which the two cases have gene which were cited on the part of the State ; It was proved in both that the prisoners had recently before the Iasi offence «tiered counterfeit notes of the same hank, or had the same ai<H ney in possession. Hot the p;>.rt ¡ruler offence in this case consists iti «tiering a acia altered from *t five to a fifty, 1 suppose by some chemical proceso; and as this is an act requiring a kind of ski'd peculiar to Itself, it may be possessed by one who knows nothing of the art of making counterfeit noteo. And a person thoroughly versed in making them, may still be altogether ignorant of this mode of alteration. If a knowledge of tine one dcscs not necessarily imply a knowledge of Use other, it cannot be relevant testimony' in the case j but still it must powerfully tend to a prisoner’s convkswo, when if Is proved that he has for twenty year:) and more been concerned in making cud handling counterfeit notes, and That he is a person of evil dispositions and wicked habits. The, most upright Jury, sifting upon the trial, of a pri,-noner whose crimine! conduct is tiins exhibited to them ®n var’ous shapes ami degrees, will find their indignant feelings too strongly excited to keep steadily in uew the £rue point of investigation. Instead of travelling calmly to a conclusion through a patient consideration of the evidence, they will he too apt to be precipitated into a conviction of his guilt, from the probability that a man who has committed other crimes lias also done this. The issue of this may sometimes be the punishment of guilt, but is there not danger that it may also lead to the conviction of the innocent, since circumstance.? of strong presumption may he adduced against them wbk h they could have explain'd had they been apprised of their coming forward ?, lienee too law will not allow it to he proved on the trias of an indictment, that the prisoner has a general disposition to commit the same kind of of-fence as that charged againsi him, or that he liad committed a similar offence at another time : — -(i Fhüíips' E~c. 137) — yet such proof would create a strong presm.jption of guilt, as part of the evidence adduced in this case would, without being' connected as it ought to be, with the particular fan on trial. So in a trial for high treason, where the overt act laid was that the Defendant had cruised in a certain vessel, proof was rejected that he had gone cruising in another, for the fact charged was the only one he was then called to answer for — (Foster 246.) Yet the proof rejected went to shew a treasonable disposition, and a familiarity with the crime. Tli:. law will not. allow evidence of a prisoner's had character to be adduced against, him in chief, lest his case should he thereby prejudiced, and converted into a trial for character instead of a spccifick crime. But if evidence of general character is thus excluded because it is dangerous, how much more so is the evidence of particular crimes and propensities extending through a great portion of the prisoner's life ? It cannot in reason be expected, that he is prepared for such a trial, for he lias no notice of it, and the evidence mast go to the Jury with the full weight of the odium thus created. Circumstances may be brought forward in the life of tiie most upright man, which if taken singly and unexplained, are calculated to raise a presumption against him, but which upon a nearer view might more clearly shew his innocence. I will briefly notice those parts of the evidence which I think improper, because they do not warrant directly the inference that Twitty passed this bill knowing it to be counterfeit$ though it must be admitted that the evidence cannot be read without, leaving a strong impression on the mind unfavorable to his character. His knowledge of the genuine three dollar notes of the Cape-Fear Bank : his having in his possession, twenty years ago, a quantity of untrimmed counterfeit notes, which lie said were well executed; the proof that he was a maker of spurious money, and intimate with persons of tiie same description, are circumstances from none of which can I see a direct or necessary inference that Twitty was acquainted with the particular mode of altering notes which appears in this case j a mode which seems to be of modern invention, asid which a person skilled in could probably follow to the exclusion of the greater labour and risque of fabricating hank notes and forging the signatures. I Teel perhaps more strongly convinced of the impropriety of this evidence, because, after a consideration of the whole case, I think the probability is on the side oi Twitty's innocence in this charge. It appears to me that he has been particularly cautious in respect to passing counterfeit money, that he has rather contrived the movements and directed the greater operations of a larger concern, Ilian encountered the dangerous details of guilt. His reflection upon the value of his counterfeit stock in the hands of a young man of good character, implies that his own was suspected, and that he could not safely' utter the money: and in no part of the evidence against him does it appear that he had ever passed money of the ..description here (^at‘Set^ Now it strikes me as improbable, and by no means reconcileable with his former conduct, that he s}10u](] venture upon the dangerous experiment of sending this counterfeit note to a man, who, of all others, was most likely to detect it, the cashier of a bank, daily in the habit of receiving and judging of money, and who was not likely to lose any part of his skill and quick-sightedness in detecting false money sent to him by Twitty. I should therefore be of opinion, for these reasons, that the Defendant is entitled to a new trial. Upon the motion in arrest, I will not enter into a particular examination, because I fully agree with my brothers, that the affidavit on which the case was removed, was wholly insufficient according to the act of Assembly.