People v. M'Collister — 1 Wheel. Cr. Cas. 392

Majority

p. 392

The People vs. Robert M’Collister.

Headnote

The prisoner was charged with having in his possession with intention to utter and pass, and with uttering to John Simonson, a five dollar counterfeit note of the Ontario Bank, and also with having in his possession two other counterfeit notes of the same bank, with intention to pass them, on the 30th day of May, 1823.

Tke arrest oí a prisoner on a charge such a’ duress ventTc sion made by him, while under arrest from being given in evidonee to the jury on his trial. or?erWinSfbr tained • trunk found ers* boarding" house, is a recognition of the^ruíkantl contents, and en^in 6 dence to the iury.

On Counterfeit NoteS'

ip{je case appeared as follows : the prisoner who lived e r in the upper part of the town, came to the store of Mr. Simonson, 47 Greenwich-street, on the 27 th of May, in the- and purchased a few trifling articles, amounting to three shillings, and gave in payment a five dollar counterfeit note 0fthe Ontario Bank,

__ , He again came into the store on the 30th, and offered another note of the same amount and description for pay- r r j ment for a quarter of tea. Mr. Simonson, who was in the store, immediately discovered that it was a counterfeit one, told the prisoner so. The prisoner replied, that he knew from whom he received it. He was taken by Mr. Simonson to the police, and denied being in possession of any other money,

Hpon being taken to the police-office and searched, he was found in possession of another counterfeit note of same Bank, and of the same description, and gave a fa}se account of his residence, Connections, conduct, &c. to the police-officer.

Maxwell, District Attorney,

was proceeding to give in evidence to the jury the confession of the prisoner to Mr. Simonson, when he made the arrest, and during the time he was bringing him to the police-office.

Price

objected ; he contended that the confession of the prisoner could not be received, inasmuch as he was then

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arrested and under duress. The examination of a prisoner at any time, was only permitted by statute, and which tended only to cases taken in pursuance to its direction, before the proper authority ; that a confession of a prisoner to questions put to him, while under the operation of sensations and feelings which are inspired by a charge and arrest for felony, could not be considered as free and voluntary, and which would entitle them to6be given in evidence to the jury on his trial.

Maxwell replied, that if such an objection was allowed to prevail, it would exclude every confession made by a prisoner ; and that the duress complained of, was no more than existed in every case of arrest, there being no promises of favor, or threat^ of injury held out to him, or any other undue advantage taken of his situation. •

The Court observed, that the free and voluntary confession of a prisoner was, >at common law, allowed to be given in evidence to the jury on his trial ; that the Statute relating to examinations had nothing to do with the voluntary confession of a prisoner : his confession might be ' given in evidence against him before the statute was made. It was a particular mode pointed out by the Legislature, in relation to the examination and confession of a prisoner, which must be strictly pursued. In this case, no promises or threats appear to have been held out to him to induce a confession at the time it was made; therefore it was a free and voluntary confession.

The confession of the prisoner was allowed to be given in evidence to the jury.

It appeared further, from the testimony of Mr. Simon-son and Lewis B. Corwin, his clerk, that the bills were

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.counterfeit; that the prisoner said he lived in Spring-street, ancj ^Q(. ^ jn Orleans, and was a married man; which were all proved false by the testimony of respectawitnesses.

It was also proved by the police-officers that a trank was found in the house of Mr. M’Collister, a brother of the prisoner, which contained small quantities of tea and sugar, dec., apparently bought for the purpose of affording an opportunity of changing money, at the respective places at which such articles might be purchased.

Price contended, that as the trunk had been found in the house of the prisoner’s brother, and not in the house of, or in the possession of the prisoner, neither the trunk nor contents could be given in evidence to the jury against him ; that it was incumbent on the prosecution to show that the trunk belonged to the prisoner, before he should be responsible for it, or what it contained.

Maxwell, replied, that it was not denied by the prisoner himself, that he was owner of the trunk ; it was found in the house of a near relative, and admitted by them to belong to him ; and after it was taken to the police by the officers, an order was drawn by the prisoner for money to pay for the services of counsel, &c.

Price contended, that all this might well be, and yet the prisoner not be the owner of the trank, nor the contents of it, and that it was straining the principles of law too far, .in the absence of positive proof of property, to infer the ownership of the prisoner.

The Court decided that, as the trunk was found at the house of the prisoner’s brother, where he boarded, and af

p. 395

ter it was brought to the police-office, he drew an order for money, which it contained, and. which was found in it, was such a recognition of the property as would allow the trunk and contents to be given in evidence to the jury.

Small quantities of tea and sugar were found in the trunk, rolled up in separate pieces of paper, &c.

Maxwell, rested the case.

It was proved on the part of the prisoner that he was very illiterate, and was a hard working industrious man ; had been at New Orleans about a year since, and was a •man of good character, and had never been charged with a crime before.

Price, for the prisoner, contended before the jury, that the evidence against him was not sufficient. The best men were liable to, and often were actually deceived by counterfeit money; and could it be thought strange that the prisoner, who was very illiterate, and of course unacquainted with bank notes, should by accident have them in his possession ? he had shown a good character—was never charged with a crime before, &c.

The Court observed to the jury, that it was of the greatest consequence to free the community of offences of this description : the frequency of the crime, of late, demanded the most serious attention of courts of justice. No man’s property is safe while he is subject every day to be defrauded of it by means of this spurious paper. In the case now before the Court, it appears the prisoner lives in the upper part of the town, and came a great distance to purchase of the prosecutor small quantities of tea and

p. 396

sugar, for which he passed upon his clerk a counterfeit note, an(j returne¿ jn two ,or three days and offered another note, of the same bank and description, for another trifling artic^e> w^en he was arrested ; and upon examining his per-another counterfeit, note was found upon him of the same bank and description, after having denied being in possession of any more money. His honor observed, the identity of the bills, and the person of the prisoner had been proved, and that it was the province of the jury to say whether the prisoner had these bills in his possession with an intention to pass, and actually passing them, as laid in the indictment; and proceeded to notice some circumstances in favor of the prisoner, that it appeared by the testimony that he was a hard working, industrious, man, and had, heretofore, sustained a good character, and that in cases where' the intent was in issue before the jury, the prisoner ought, and had a right, to have the benefit of it on his trial. It was also proved, that he was illiterate—this circumstance, although no excuse for the crime, might be an argument in favor of his ignorance of the quality of the bills, &c.

The Court left it to the jury to say whether the prisoner was guilty, from all the circumstances of the case, or not.

The jury found him guilty.