State v. Phelps

If an indictment charge that, which is an offence at common law only, to he contrary to the statute, judgment will not be arrested. The person, whose name is forged, is a competent witness in hehalf of the state, on a prosecution for the forgery. Confessions or disclosures, made under any threat, promise or encouragement of any hope of favor, are inadmissible in criminal prosecutions.

This was an information, in five counts, for the forgery of a Written instrument in the following words, to wit: “ No. St. Albans, February 18, 1836. Cashier of the Bank of St. Albans, pay James Wilson, “ or bearer, seven hundred dollars. «#700 “ N. W, KINGMAN.” The .first count described the said instrumentas “an or- “ der for the payment of moneythe second count described it as “a request in writing for the payment of money” the third, as “ a certain order for the payment of money, com- “ monly called a bank check —the fourth as “ a request for “ the payment of money, commonly called a bank check.” In the four first counts the instrument was. set up in haec verba- The fifth count described'k as- “an order for the pay- “ ment of money, purporting to bear date the iStli day of “ February, A. D. 1836, and to have been signed by one N, “ W. Kingman, directed to the Cashier of the Bank of St, “ Albans, therein requesting the Cashier aforesaid to pay to “ James Wilson or bearer seven hundred dollars,” and then set it up in haec verba. In all the counts the intent was alleged to be to defraud the President, Directors and Company of the Bank of St. Albans,” and they all concluded “ contrary to the form, force and effect of the statute in such, “ case made and provided and against, &c.” On the trial in the County Court, Among other witnesses called by the prosecutor, for the-purpose of proving said cbeek (which was produced in evidence) to be a forgery, was N. W. Kingman, whose name appeared, thereon as the drawer. It did not appear that he had been discharged from any liability on said check or that the bank claimed that he was liable thereon, and it did appear that he had jiever paid, the same. He was objected to in behalf of the respondent, as an interested and incompetent witness. The objection was- overruled, and said witness gave material 'testimony in support of the prosecution, and tending to prove said check a forgery. The prosecutor then called Abel Houghton,who for sever-' al years past had been a stockholder in the bank of St. Albans, and cashier of said bank, to prove confessions of the respondent, made to the witness. It was objected in behalf of the respondent, that if any confessions had been made to the witness, they were induced by promises or expectations of favor, and were therefore not admissible in evidence. And, in ‘support of said objection, the respondent’s counsel proceeded to examine said Houghton, who testified that, in the summer or autumn of 1839, (the respondent being then at large on bail) the witness was informed by Judge Turner, one of the respondent’s counsel, .that the respondent was disposed to assist the bank in obtaining security for the amount of said check ; that the witness thereupon expressed a wish to see the respondent on the subject; — that shortly after this the respondent called on-the witness and said he thought he could assist the bank in obtaining such security, and added, that if he succeeded in getting the debt secured, he thought he should be entitled to favor in this prosecution. That the witness replied that all: he wanted was security for the debt, and if that object was effected, the respondent might expect any favor, which the witness or the bank could properly grant; that the witness did not require or expect that the respondent was to make any confessions or admissions against himself, nor was any other or further encouragement of favor held out to him ; yet he believed that the respondent held his conversation with him in expectation - of favor; that several conversations passed between them, all of which were mutually considered as cpnfidential'and which the witness did not now7 feel at liberty to disclose, unless by direction of the court, — and that no security was ever produced. Upon this evidence the court overruled the objection — and the witness ■ testified to several statements and declarations of the respondent, tending to implicate him in said forgery, part of which appeared to be in some measure connected with the proposed measures for getting security and the other parts not necessarily or apparently so connected. To which decisions of the court the iespondent excepted. After verdict of guilty, a motion in arrest was filed, for the insufficiency of the information ; which motion was overruled by the court, to which the respondent excepted. The exceptions were allowed and sentence respited and the case. passed to this court for revision. I. The court below improperly admitted the witness, King-man, to prove the forgery. 2 Russell on crimes, 374 — 5 Rex v. Boston 4 East’s Rep. 582., 1 Phil. Ev. 93-4, ib. 171-2 Leach, 214. The same rule has been adopted in some of the United States. 4 Johns. Rep. 276. Swift’s Ev. 70. II. The admission of Houghton to testify to the confessions of the respondent was manifestly improper and in violation of a plain and uniform rule of evidence on this subject. The confessions were made upon giving the respondent to understand that he might expect the favor and assistance of the bank in the prosecution. Courts have always rigidly adhered to the rule that confessions, made upon any inducement held out in prospect of favor or benefit of any sort, shall not be disclosed. 2 Russell on crimes 643-4. Rex v. Kingston, 4 Car. & Payne, 387, Rex V. Hills, 25 Com. Law Rep. 324. 1 Phillips’ Ev. 86-87 &, note. III. In two prominent particulars it is insisted that the information is wholly insufficient. 1st. The offence, alleged in the information, is not an of-fence, provided for or within the meaning of the statute on which said information is founded. It is insisted that a corporation is not a person within the meaning of the statute and, if not, the information charges no crime against the respondent. This, being a highly penal statute, is not to be extended by implication. In accordance with this rule it was decided that the statute 1 Ed. 6, which enacted a punishment against those who. were convicted of stealing horses, ■ did not extend to him who should steal one horse. So the statute 14 Geo. 2, which made it penal to steal sheep or other cattle, was held to extend only to sheep. The principle is well settled that a penal statute should not be extended to cases not plainly intended to be embraced by the Legislature, although they come within the mischief intended to be remedied. 4 Term Rep. 665. See also State v. Bowman, 6 Vt. Rep. 594. State v. McLeran 1 Aik. Rep. 311. Again, it has been decided by the English courts, that the statute 2 Geo. 2, Ch. 25, which was the same as ours in this particular, did not extend to corporations, and in the 31 Geo. 2, a statute was made expressly embracing bodies politic and corporate. - See statutes in Crown Circuit Companion, p.397. 2 East’s Cr. Law, 926, 2 Chitty’s Cr. Law, 803. 2 Russell on Crimes, 368. 2. It does not appear by the information that the President Directors and Company of the Bank of St. Albans are or ever were a corporation, that they ever were chartered or created by any competent authority or that they ever had any legal existence. Surely this is necessary. I. Although by the English law, the witness, Kingman, would be excluded, yet the reason of the rule ceases to apply under the laws of this State, in consequence of those modifications which the common law has received by the intervention of statutory enactments, altering not only the common law itself but the mode and manner of prosecution in criminal offences. For similar causes the English rule has been exploded in several of the sister states, and doubts have been entertained whether there is’ any reason in the rule, as applied even to the English law. 2 Swift’s Digest, 409. 3 Mass. Rep. 82. 5 do. 261 — 1 Root’s Rep. 508 — 4 Johns. Rep. 296 — 1 Dali. Rep. 110 — 2 do. 239 — Add. Rep. 246. II. The evidence of the respondent’s confessions was properly admitted. This case is fairly distinguishable from all those cases where confessions have been excluded in criminal prosecutions. Vid. 2 Starkie’s Ev. 27, 28, 29, and notes and oases there cited.