People v. Howell — 4 Johns. 296

Majority

p. 296

The People against George Howell.

NEW-YORK,

Ma y, 1809.

Headnote

A person indicted for forging-“an order for the payment CTdhied toa pe íci™(-!°it being an offence undor (he s(atut<\ puvishabie only with imprisonment f<n- a in' "ail'*raises"'8' peremptorylt °f not ex?sTtwo°or more persons may be indicted, and tried jointly or separately, in the discretion of theiuro pei-.ons SailÉnc^ami remjitory0 cliailonge, can he tried together against their consent ? Qiuere. A checkin the the hank, ’ was K oho received í-cmírtóTif to'c ashisagem.TZie cliecTc was, aftei-wavds disco-forgery,'and the stonk|f the"moreJchedf° the " hands of c. On an indictment for the forgery, P. was held lo he a competent wiUiess to prove the forgery, lie having received a release from the bank ; and that he was not answerable to C. for the money, even if the check wore genuine, the bank having acted without his direction.

In an action by C. against B. the consideration for which the check was given might he inquired into; if it was given for a pre-existent debt, and the check proved bad, B. would be still liable for the original debt. A promise without a consideration, even though it be in writing is a nudum pactum.

Whether, in every criminal case, a witness who is not interested in the event of the cause, is not a competent witness ? Quere.

AT the last general sessions of the peace, held in the _ ° u 1 city of New-Tork, Howell, the prisoner, who was now , brought up on a habeas corpus, was indicted with one James Mitchell, for forgery. The indictment was for Urging “ a certain order for the payment of money,” ancj the check was set forth as follows : “ New-Tork, 27th 1 February, 1809. Cashier of the Merchants’ Bank, in the , , ,, city oi Nezo-2 ork. Pay 4,095, or bearer, 685 dollars 20 cents. Benjamin Butler

When the prisoners were brought up to be tried, the counsel f°r Howell moved the court, that he should be tried separate and apart from Mitchell; but the court refused to grant the motion, and directed both prisoners to , . be tried together, and they were tried accordingly. 1 hey were both allowed peremptory challenges, and both challenged. On the trial, the following facts appeared in evidence* On the 28th Peoruary, 1809, John Guest, a cabinet-maker, in the city of New-Tork, received a letter ' J from one Abraham Cooper, dated at Brunswick, (New- , . Jersey,) and containing the check m question, purporting to be drawn by Benjamin Butler, on the merchants’ bank, for which check Guest was directed to ob-ta*n t^le nloney-i and after retaining 35 dollars, the price of a bureau, which was directed to be forwarded, to re- . mit the balance to Cooper, m a letter directed to the care of one De Graw, an inn-keeper at Brunswick. On the next day, Guest presented the check at the merchants’ bank, received the money, and after deducting the- 35 dollars, as requested, transmitted the residue according to the di1 rections of Cooper. The amount of the check was charg- , 1 r ed by the bank, who did not then suspect a forgery, to

p. 297

Butler, the drawer, who kept a cash account with the „ ’ ’ r bank.

On the 3d March, De Graw received a letter from Cooper, dated in Nerw-York, requesting that the letter received by him (and which contained the money sent by Guest) might be forwarded to New-York, addressed to Silas Fordham, with which request De Graw immediately complied. During these transactions, Butler came to some explanation of his account with the bank, and declared the check in question to be a forgery. In consequence of this declaration, the bank immediately took measures to ascertain the fact of forgery, and to recover back the money which had been paid on the check ; and they succeeded in tracing the transaction, so as to seize, at the post-office, on the 4th March, the letter forwarded by De Graw to Fordham, and which contained the money. On the 7th March, the bank credited Butler the whole amount of the check, who received the same. The bank intended, at all events, to have credited Butler the amount of the check, as soon as they were fully satisfied that it was a forgery.^[1]

At the trial, Butler, whose name had thus been forged, was offered as a witness, on the part of the people, in order to prove the forgery. He was objected to by the counsel for the prisoner; but on producing a release from the bank, he was admitted. At the request of the prisoner’s counsel, the point as to his admissibility was reserved for the decision of this court. The prisoner was convicted, and Mitchell acquitted.

Griffin, for the prisoner.

1. The prisoner, against his consent, was tried together with Mitchell. He ought, according to his request, to have been tried alone. It is a principle of justice, which our law is anxious to maintain that every man who is accused, should have a fair and im

p. 298

partial trial; and the court cannot throw any impediment in the way of such a trial, to the prejudice of the accused. Now, if a prisoner is compelled to be tried with others, he may be greatly prejudiced by the circumstance. An innocent person, put upon his defence jointly with a great and notorious offender, may be materially injured from being placed in such a situation. Again, a prisoner indicted for a capital offence, is allowed to challenge peremptorily twenty of the jurors. The benefit of this privilege may be destroyed by his being tried with another, who may exercise the same right; for his associate may, perhaps, challenge , the very men he would wish to be his triors.^[12]

2. Butler ought not to have been admitted as a witness. An interest in the question put to a witness may produce as strong a bias on his mind, as an interest in the event of the suit. It is a settled rule, that a person whose name is forged is not a competent witness to prove the forgery.^[6] Butler, it is true, had a release from the bank ; but if there is any other person to whom he would be liable, if the check were genuine, his interest still remains. Now he was liable to Cooper ; for if the check proved bad, Cooper might consider it as no payment, and resort to his original demand. Again, he might bring an action on the check against Butler, and if the latter should allege that the check had been paid by the bank, Cooper might answer, that the money had been stopped in transitu, by the bank, so that there had not been a real and effectual payment. The case of the King v. Usher,^[7] may, perhaps, be cited ; but that was very different from the present. The banker had not charged the person whose name was forged with the money, being satisfied of the forgery ; and the question was only between the banking house and the man who was injured. Here is a third person who has received the check.

Riker, (district attorney, and Sampson, contra.

1. From the observations made by Mr. Justice Buller, in the case of Young and others v. The King, in error,^[11] there

p. 299

can be no doubt of the practice in England to try two or more prisoners together; and Buler mentioned a case before him, where two persons were tried together for murder, where the evidence affected the prisoners differently, and that he summed up the cases separately to the jury, and took separate verdicts against each. Foster^[12] mentions the same practice. The prisoner, in the present case, was not entitled to a peremptory challenge ; for the act of the 18th April, 1808,^[6] has altered the 1aw of the 21st March, 1801,^[7] so that the forging of an order for the payment of money, is now punishable with imprisonment for a term of years only, and not for life. The objection, therefore, in regard to the right of peremptory challenge, must fail.

2. Butler, after his release, was a competent witness. In the case of Dr. Dodd, Lord Chesterfield, whose name was alleged to be forged, was admitted as a witness, on producing a release from the supposed obligee of the bond.^[11] A person whose name is forged may be a witness to prove the forgery, where he is not directlyinterested in the question.^[9] After the check had been regularly paid at the bank, it was at an end, and Butler could never afterwards be made liable to Cooper on the check. The money was paid to Guest, the agent of Cooper, which was equivalent to a payment to Cooper himself. The case of the King v. Usher, is a strong case to show, that Butler, after his release, was a competent witness.

T. A. Emmet,

in reply, observed, that though in England, prisoners may be compulsorily tried together, yet there were substantial reasons for a different practice in this state. In England, the sheriff is unlimited as to the number of jurors to be returned on the panel. By the act of the 31st March, 1801,^[10] the sheriff is authorised to summon no more than 36 jurors. Should any deficiency of jurors exist, a tales must be awarded. If a man, against his consent, is put upon a trial with another, who peremptorily challenges, it is a most serious injury, for the very best and

p. 300

most unexceptionable jurors for him, may thus be set aside. There may be challenges, for cause, as to one prisoner, which would not exist as to the other. The law is studious in the protection of the accused, and through the whole-course of the trial he is benignly reminded of his privileges, that he may be on his guard. Again, Howell must have been led into a mistake, by the allowing a peremptory challenge to his associate, and the whole panel was thus deranged, so that the prisoner could not have a fair opportunity to exercise his right.

2. The check was not in fact paid, for though the money was paid at one moment, it was taken back at the next, and Butler could not, therefore, in an action against him by Cooper, allege that it was paid. His only defence would be, that it was a forgery. If the check was genuine, and the bank acted by the direction of Butler, then Butler would be equally liable to Cooper, for the money thus wrongfully taken. In any view of the case, therefore, Butler was interested in proving the check to be a forgery.

A question was raised, on the argument, whether, in case the court should be of opinion, that either of the objections was well founded, they would grant a new trial or discharge the prisoner. Riker insisted, that the court had the power to grant a new trial, and cited 2 Str. 968. & Co. 14. Arundel’s case. 4 Hawk. P. C. 330. c. 36. s. 15. People v. Townsend. 1 Johns. Cases, 105. and the case of the United States v. Fries, (3 Dallas, 515.) which he said was a strong case to this point.

Emmet observed that, in Arundel’s case, there was a fault in the venire ; that he never heard of a. new trial in a criminal case, and where it was not asked for. The prisoner, in the present case, does not wish for a new trial, nor does the public prosecutor apply for it. Where a person has once gone through a trial, and been put in jeopardy of his life, the court will never grant a new trial, unless in favorem vitæ, at the instance of the party.^[12]

delivered the opinion of the court. The defendant was convicted at the last court of general sessions of the peace in this city, for forging the check of Benjamin Butler, purporting to have been drawn upon the merchants’ bank. The record has been removed into this court, and the counsel for the prisoner have raised two objections to the legality of the commitment.

1. That the prisoner was tried, against his consent, jointly with one Mitchell; 2. That Butler, who was admitted as a witness against him upon the trial, was incompetent, on the ground of interest.

1. It appears by the indictment, that the prisoner was indicted for forging an order for the payment of money. The check is set forth, in hæc verba, in the indictment, but it is denominated an order. The statute of 1808, made some alterations of the former law in respect to the punishment of forgery. The forging of deeds, promissory notes, and bills of exchange, is punishable with imprisonment for life, as before ; but the forging of orders for the payment of money, is now only to be punished with imprisonment for a term of years. A check is not, either in common parlance, or in the technical language of the books, called a bill of exchange or promissory note, though it may, in some respects, have the same legal operation. The statute, in discriminating between bills and notes, and orders for the payment.of money, must be interpreted according to the usual and settled understanding of those terms, and a check will therefore fall within the description of an order for the payment of money. It has been so understood by the public prosecutor in this case, and if the question- was otherwise doubtful, the classification given to the paper in the indictment ought to prevail over the other denomination of the instrument, as that would inevitably enhance the punishment. Penal statutes ought to be read according to the ordinary import of language, and if a term would equally admit of two constructions, the one attended with the milder consequences ought to be adopted. In this case, then, the pri

p. 302

soner was not entitled to his peremptory challenge, and consequently the force of the objection to his being tried jointly with Mitchell, is destroyed. In all cases, at least, where the right of peremptory challenge does not exist, and two persons are indicted jointly, they may be tried jointly or separately at the discretion of the court. This is the settled practice, both here and in England, and no objection to it exists sufficient to outweigh the public convenience of the rule.

2. The next objection is to the competency of Butler as a witness. The claim which the bank might have had. against him was released, and the interest, if any, which Butler had in supporting the charge of forgery, is supposed to arise from his being liable to Cooper, the nominal payee of the check. The ancient rule in England, that a witness, whose name was forged, was incompetent to prove the forgery on an indictment, because he was interested in the question, still prevails in their courts, and it was adopted by this court in the year 1794. The grounds or reasons of that decision are not before the public, and we therefore do not know them. It is probable that the court assumed the English rule as they found it then existing. But since that time, the question of interest in a witness has been investigated and defined with more precision, both in England and in this state. The rule now, in all such cases, and I believe I may say in almost all criminal cases, except in the case of a forged instrument, is, that the witness is to be received, if he be not interested in the event of the suit, so that the verdict could be given in evidence in an action in which he was a party. The interest which the witness may have in the question put, is no longer the test. That degree of interest goes only to the credit of the witness. The exclusion of the witness, in the case of forgery, has therefore now become an anomaly in the law of evidence, for it is certain that the conviction of the- party charged with forging a check, cannot be given in evidence in a subsequent civil suit on the check ; and as the reason of the old rule has

p. 303

ceased, by a sounder definition of the question of interest, and as it is not now applied to other criminal cases, it would seem to he fit and proper, that the rule itself should no longer be applied to the case of forgery. But the present case does not turn upon the validity of that rule, and there, fore the court do not now interfere with it. Assuming the rule to exist, according to the decision, in the case of Hamilton, in 1794, we are of opinion, that the interest of Butler was extinguished by the release from the bank. He was no longer answerable to Cooper upon the check, for that had been paid and satisfied by the bank. Cooper, by means of his agent, had received from the bank, the amount of the check, and had applied part of it to his private use, and transmitted the residue to this city, by means of the mail. The check was as much spent, as if it had slept for years afterwards on the files of the bank. It had completely performed its object. The subsequent recovery of a part of the money by the bank did not revive and give efficacy to the check. Cooper had his remedy against the bank, if they had unduly taken money out of his possession, but it gave him no remedy against Butler, any more than if any third person had received that money wrongfully from the possession of Cooper. If the bank had acted as the agent of Butler in receiving the money, he would, then, perhaps, have been equally liable (supposing the check to have been genuine) as a tortfeasor, but there is no evidence in the case, that the bank acted under his directions. They acted voluntarily, and with the laudable design of detecting a fraud, and avoiding a loss. They were struggling to indemnify themselves, and not for the service of Butler. But the objection appears to be susceptible of another and conclusive answer. If Cooper was to sue Butler, the consideration for which the check was given would be a lawful object of inquiry. The consideration of any negotiable paper is examinable, as between the original parties to that paper, and from the facts in this case we must consider Cooper as the person who originally received the check from Butler,

p. 304

supposing it to be good. The check then was founded upon a previous good consideration, or it was not. If there was a pre-existent debt for which it was given in payment, the debt would still exist against Butler, if the check was not good. Unless a check be paid, it is no payment. If, on the other hand, the check was voluntary, and given without consideration, Butler was not bound to pay it, for a promise without a consideration, is a nude pact, even though it be in writing. In no light, then, in which the court have been able to view the question, does it appear, that Butler was incompetent, and, consequently, neither of the objections to the conviction of the prisoner appear to be well taken.

Judgment, that the prisoner be sent to the state-prison, to be kept at hard labour, for fourteen years.