Opinion
December Term, 1856.
Where a bond was given in lieu of, and for an indemnity against, a forged note which is surrendered, and a part of the contract is, that the individual, upon whom the forgery was made, was not to appear against the accused unless he should be summoned, such bond is against the policy of the law and void.
And this, although it is expressly declared by the parties, at the time, that the new security is only given as an indemnity against the forged instrument, and not to compound the offense.
ACTION of DEBT, tried before SAUNDERS, Judge, at a Special Term (December, 1856,) of Wayne Superior Court.
The action was brought upon a bond, purporting to have been executed by William Whitman and Wright Whitman, payable to Lemuel H. Taylor, and endorsed by him to the plaintiff.
It appeared that one Gabriel Whitman was brought from the jail of Wayne county, before three magistrates, upon a question of commitment for an offense unconnected with the matter in question, and not being satisfied as to the propriety of binding him to Court, they proceeded to investigate, without any warrant or other written charge, a matter imputed to him, of which they had heard, to wit, a fraud committed on Lemuel H. Taylor, by obtaining his signature on a blank piece of paper, under a false pretense, and afterwards writing a promissory note over it for four hundred dollars, payable to one Scarborough.
Upon this investigation, Lemuel H. Taylor testified, that Gabriel Whitman came to his house, and asked him to lend him his name, and pointing to a place on the right hand side of a blank piece of paper, desired him to sign it there, which he did; that afterwards a note was filled up, over the signature thus obtained, for $400, payable to Scarborough; that he obtained the note from Scarborough, in order to show it to a lawyer, by giving his receipt for the same; that afterwards, on Wright Whitman and William Whitman's giving him the bond sued on, he surrendered Scarborough's note to them; and that he expects to pay Scarborough the amount of that note. On cross examination, Taylor said, "nothing was said by Whitman as to the use he wanted with my name; I think there was something said about a token or memento, but I don't recollect distinctly."
On the same investigation, one Micajah Martin testified that he was at the dwelling of Lemuel H. Taylor in the January previous, and heard Gabriel Whitman say, he wanted Taylor to let him have his name on a piece of paper, because when he liked any body well, he desired to carry some token about him; that he produced the paper and pointed with his finger to the place where he wished Taylor to sign, and he accordingly did sign it in the witness' presence. The expression used by Whitman, when he requested Taylor's signature was, that he wanted to carry it about to remember him, and some such word as memento or token was also used.
It appeared in the case, that while Gabriel Whitman was in jail on the first mentioned charge, but before the examination about the note to Scarborough, a negotiation took place between Taylor and the defendants Wright and William, wherein it was agreed that Taylor should be secured and indemnified as to the Scarborough note; accordingly, but still before the investigation above mentioned, the bond in question was given, payable to Lemuel H. Taylor by Wright and William, who are the brothers of Gabriel Whitman, to secure and indemnify the said Taylor against the said note. The note made to Scarborough was delivered to them; at the same time it was expressly understood, that Taylor had no power to stop the prosecution, or in any manner to control it; but it was agreed and promised, on the part of Taylor, that he would not appear against Whitman, unless he was summoned so to do.
On the investigation before the magistrates, Taylor was notified to appear and give evidence, which he refused to do until he was summoned formally. Upon this being done, he did appear and testify as above stated.
The result of the investigation before the magistrates, as to the filling up of the note to Scarborough, was to commit Gabriel Whitman for trial.
Upon the trial of the case below, a verdict was taken for the plaintiff, subject to the opinion of the Court, with the understanding that if the Court should be of opinion in favor of the plaintiff, judgment should be entered on the verdict; if otherwise, a judgment of nonsuit should be entered. The Court, being of opinion with the plaintiff, gave judgment according to the verdict; from which the defendants appealed.
Dortch, for the plaintiff.
Bryan, for the defendants.
The evidence left it doubtful whether Taylor had "lent his name" to Gabriel Whitman by signing it on the piece of paper, with the intention that said Gabriel might write a note above it, for the purpose of raising money, or whether Taylor had simply written his name on the paper, with the intention that the said Gabriel should keep the autograph as a token or memento of friendship. From the manner in which the verdict was entered, this fact was not passed on, or fixed one way or the other. His Honor calls it a fraudulent note; and from the testimony of Micajah Martin, which is set out in the examination before the magistrate, and sent as a part of the case, and the circumstances attending the execution of the bond sued on, there was evidence tending to show that the name of Taylor was procured as a token of friendship merely, without an intention to authorise Gabriel Whitman to write a note above it; at all events, as the case is now before us, the defendants have a right to assume that state of facts.
If one writes a note above the signature of another, which happens to be at the foot of a letter, it is clearly forgery; so if he obtains the signature as an autograph, to be used as a keep-sake, and writes above it, it is a forgery; for forgery may be committed as well by the fraudulent application of a false instrument to a true signature, as by a fraudulent application of a false signature to a true instrument. Chitty's Crim. Law, 1038. So we have this case: Taylor, upon whom the forgery has been committed, agrees that upon his being "secured and indemnified against the payment of the money purporting to be due on the fraudulent promissory note," by execution of the bond now sued on, "he would have nothing to do with the matter, further than the law required." Upon receiving the bond sued on, he handed up the false note to Gabriel Whitman, or his agent, telling him that he could not stop the prosecution, as that was a matter in which the State was concerned, and not under his control, but that he would not appear in the prosecution unless he was summoned to do so.
We think this was compounding an indictable offence, and consequently, that a bond given in consideration thereof, cannot be made the ground of an action in a Court of justice. How else can an individual compound a felony or other criminal offence, except by agreeing not to prosecute, and not to tell what he knows unless he is summoned as a witness, and by giving up the false instrument, which will be most material evidence on the part of the State?
The efficacy of punishment depends more upon its certainty than its severity. Hence, it is a matter of public concern, that all violations of the criminal law should be detected and punished. So that any individual who knows that an indictable offence has been committed, and conceals it, thereby fails to discharge the duty of a good citizen. Upon this principle, the bare concealment of treason or felony is an indictable offence, and the offence is aggravated by compounding the felony — that is, by an agreement not to prosecute or make known what has come to the knowledge of the party; for, although he is the person directly injured, the law does not allow him to take care of his private interest by accepting compensation at the expense of the public justice. In offences less than felony, this concealment or compounding is not indictable, but it is, nevertheless, against the policy of the law, and the due course of justice; and the Courts would not be true to themselves if they enforced a contract founded on such a consideration. If he secures himself by an executed agreement, well; but if he relies on an executory agreement, having "cut loose" from the public, the Courts will not give aid in furtherance of his selfish attempt. This is familiar doctrine. The difficulty in the case is in making the application.
His Honor was of opinion that the consideration of the bond sued on was not against public justice. In this there is error. According to the view we take of the case, Taylor was not at liberty to take care of his private interest by accepting an indemnity, and thereby depriving the State of an active prosecutor; which is one of the means relied on for the conviction of offenders. The testimony of Taylor, when contrasted with that of Martin before the committing magistrates, in reference to the same transaction, suggests the fear that this douceur had taken effect. When the person directly interested is appeased before the trial, he is under strong temptations to favor the offender.
If, upon the next trial, it should turn out that, in point of fact, Taylor did sign his name with the intention that Gabriel Whitman should write a note above it, and afterwards took advantage of Whitman's alarm by reason of the proceedings instituted by the magistrates, and induced his brothers to execute their bond for his indemnity, by giving up the note, and agreeing not to prosecute, or give evidence, unless he was summoned or required to do so, an interesting question will be presented. Venire de novo.
PER CURIAM. Judgment reversed.