Summary
In S. v. Twitty, 9 N.C. 449, the Court extended the rule, and held that in all cases where the credibility of the witness is attacked, from the nature of his evidence, from his situation, or from imputations directed against him in cross-examination, confirmatory evidence of this kind is admissible.
Summary of this case from State v. GeorgeOpinion
June Term, 1823.
1. When a witness is called who, in the commencement of his testimony, states himself to be an accomplice of the accused, it is regular, before the witness is attacked, to call on another witness to prove that the first had related the facts disclosed in his evidence immediately after they happened, and to state other confirmatory facts. Such evidence is to be considered as substantially given in reply.
2. When an indictment charges a defendant with forging a bank note, purporting to have been issued, etc., promising to pay, it must be understood as descriptive of a bill purporting to promise as well as purporting to have been issued.
INDICTMENT against the defendant, charging that he "of his own head and imagination did wittingly, falsely and feloniously make, forge, and counterfeit, and did wittingly assent to be forged, made, and counterfeited, a certain promissory note, commonly called a bank note, purporting to have been issued by the president, directors, and company of the Bank of Cape Fear, promising to pay John Mitchell or bearer on demand $3, which said promissory note, commonly called a bank note, so falsely made, forged, and counterfeited, is as follows, that is to say (the note was here set out verbatim), with intention to defraud the president, directors, and company of the Bank of Cape Fear," etc.
Gaston for defendant.
On the trial below Langford was introduced as a witness for the State, and swore that he received the bank note in question, with eight others for the same amount, from the defendant, who told him they were counterfeit; and, further, the witness stated that he had frequently before received forged notes from Twitty, when it was well known to both of them that they were so. On the night previous to his obtaining these nine forged notes from Twitty, the witness stayed at the house of Foster, his brother-in-law, about three miles from Twitty's. Early on the following morning he (450) went to Twitty's, received the notes, returned on the same day to Foster's and showed him the bills, telling him in confidence that he had obtained them from Twitty. Langford was admitted to be an accomplice, and, to corroborate his testimony, Foster, who was above suspicion, was sworn, and stated substantially what Langford had already deposed. Foster's testimony was objected to, but the court received it. There was much testimony of a circumstantial nature, which it is unnecessary to detail. The defendant was found guilty and moved for a new trial, on the ground that Foster's testimony should not have been received. A new trial was refused, and he then moved in arrest. (1) Because the record sent from the county of Rutherford (whence the cause had been removed) to Lincoln, did not show that a grand jury had been appointed according to law, by whom the bill was found. (2) That the indictment contained no averment that the forged instrument was set out according to its tenor. (3) That the charges in the indictment, descriptive of the offense, were not in the words of the statute. (4) The record was not such as would authorize a judgment. The reasons in arrest were overruled and sentence passed. Defendant appealed to this Court.
A motion for a new trial in this case is made upon the ground that the witness Foster was admitted to testify to Langford's (a witness) declarations made to him about the time when the occurrence took place, which Langford was introduced to prove. It is said that such evidence is merely hearsay, and if admissible in confirmation of Langford's evidence, could only be so in reply, after the credibility of the latter had been attacked, and that under no circumstance is it evidence in chief. The authorities relied upon are a note in Phillips on Evidence, (452) who remarks on the case of Luttrell v. Reynell, 1 Mod., 282, where such confirmatory evidence was offered in chief, that it would not now be allowed, and Buller's Nisi Prius, 294, where a doubt is stated whether it is good evidence in reply.
It seems to me not to be a just construction of the case of Luttrell v. Reynell to consider the confirmatory evidence as offered in chief; for suspicion may be thrown on the evidence of a witness, from the nature of his evidence, from the situation of the witness, or from imputations directed against him in the cross-examination, which may be not less effectual in discrediting him than direct evidence brought to impeach his testimony, and equally call upon the party introducing him for confirmatory evidence. The witness in the case cited appeared, from his own evidence, to have been equally concerned with the defendants in the trespass and was left out of the declaration in order that he might be a witness; but as he was giving testimony to discharge himself, which would be the effect of convicting the defendant, he appeared in a suspicious light, and therefore his declarations, formerly made, to the same amount with his evidence were introduced to restore him to the same degree of credit he would have had if no motive had ever existed for his departure from truth. Had he been free from suspicion, such confirmatory evidence would have been perfectly useless, and given as it was it must have been substantially in reply to these suspicious. Though an accomplice is a competent witness, yet his unconfirmed evidence is usually received with caution and distrusted by a jury, and I cannot but regard evidence of his previous declarations as proper in reply to those circumstances of discredit which arise from the relation in which he stands to the defendant. It appeared in the very beginning of Langford's evidence that he had been an accomplice of Twitty's, and it is highly (453) probable that he would have been discredited with the jury from this cause had not Foster proved that the witness had related to him the facts disclosed in his evidence immediately after they happened, and added such circumstances as seemed to preclude all doubt of the veracity of Langford. Considering the evidence there as having been given, and properly given, in reply, I think it is authorized by law, and am certain it has been long sanctioned by the practice of this State. For this reason I am opposed to a new trial.
It is moved in arrest of judgment that the indictment is repugnant in charging the defendant with forging a bank note, purporting to have been issued by the president, directors, and company of the Bank of Cape Fear, promising to pay, etc. In support of this objection was cited 6 Cranch, 167, where it was held that an indictment under the act of Congress, 1798, could not be maintained for forging a counterfeit paper purporting to be a bank bill of the United States, signed Thomas Willing, etc., since a forged bill purporting to be a bank bill could not be signed by the president. But in that case it appeared that the act of Congress was, in itself, repugnant, and would not support an indictment for uttering, as true, a forged paper purporting to be a bank bill of that bank, signed by the president and cashier. There is no repugnancy in the act of 1819, upon which this indictment is framed, for the offense consists in uttering as true any false, forged, or counterfeit bill or note, purporting to be a bill or note issued by the order of the president and directors of any bank or corporation within this State or any of the United States. The indictment unnecessarily goes further and states a promising to pay to John Mitchell, etc., but it is not repugnant, for if the Court reads it as others would, it must be understood as (454) descriptive of a bill purporting to promise as well as purporting to be issued by the president and directors; and as purporting imports what appears upon the face of the bill, so this, when produced, corresponds with the description. In the other exceptions taken to the form and expressions of the transcript sent up to this Court, I see nothing substantial.
The other judges concurred.
PER CURIAM. No error. Cited: S. v. Haney, 19 N.C. 398; Whitaker v. Carter, 26 N.C. 469; S. v. George, 30 N.C. 328; March v. Harrell, 46 N.C. 331; S. v. Blackburn, 80 N.C. 478; Davis v. Council, 92 N.C. 730; S. v. Whitfield, ib., 834; Burnett v. R. R., 120 N.C. 517.