State v. Cardoza

The opinion of the court was delivered by Willard, C. J.

It has been so often held that this court cannot set aside the verdict of a jury in a case in the nature of an action at law or in a criminal case, on the ground that the verdict was against the evidence, or unsupported by it, that it is-not necessary to consider that portion of the appeal that makes such a demand, farther than to say that it is not competent for this court to say, on appeal in such a case, that a discrepancy between the evidence and the verdict based upon it, is so great as to warrant the inference that the jury were influenced by improper consideration. The proper place to examine questions of that nature is at the Circuit, and the decision of the Circuit Court,, *223 so long as no error of law is committed by it, is final and con'clusive.

The first point to be considered relates to the regularity of the drawing and impaneling of the petit jury. Section two of the-act of June 8th, 1877, ( 16 Stat. 259 ), provides that “when, by reason of challenge or 'otherwise, there is a deficiency in the number of grand or petit jurors duly drawn and summoned at any term of the court in any county of the state, the judge of the Circuit Court shall order the board of jury commissioners, or a-majority thereof, forthwith to attend in court and to draw, in the presence and under the direction of the court, such number of jurors as the court shall deem necessary to fill such deficiency ;• the jurors so drawn to reside within five miles of the court-house.” It is conceded that such a case of deficiency arose in the present case, and that a majority of the jury commissioners, under the-direction and in the presence of, the court, drew from among the-names of such persons as the law contemplated for that purpose, the number required to supply such deficiency. It is not alleged that the names from which such drawing was made included any that did not properly belong there, or excluded any that should have been subjected to such drawing.

The objection is that the names drawn were contained in a compartment of the box separate from that which contained the names of the jurors from the county at large, and that such names were not selected and placed in such compartment by the authority of law. It must be assumed, though not distinctly stated, that the selection of the names from those of the jurors at large was made by the jury commissioners, and such names placed by them in the compartment of the box from which the drawing was made, inasmuch as to allow that selection and interference with the jury box by an unauthorized person, would be a breach of official duty on the part of the jury commissioners that cannot be presumed. It is not stated when the names of such jurors-were placed in the partition from which the drawing was made, the only statement of irregularity being that it was done “ long after a proper and legal list of jurors had been prepared for this county for the year 1877.” We are at liberty to assume that such selection and transfer to the separate compartment was made *224 by the jury commissioners in the presence of the court for the purposes of such drawing. The proposition on which the appel-" lant relies is, that there was no authority of law for the selection and removal of the names of the jurors residing within five miles of the court-house from the other names of jurors into a separate compartment of the box and making the drawing therefrom. It is contended that the only authority for such an act is that contained in the fourth section of the act of June 8th, 1877, which contains as follows: “When the jury lists are prepared by the jury commissioners for each year, they shall place in a separate apartment in the jury box the names of fifty persons, qualified by law to serve as jurors, who reside within five miles of the court-house, from which shall be drawn the jurors to supply the deficiencies provided for in the second section of this act.” By this section the number to be so placed for the county of Rich-land is fixed at one hundred. It is also contended that as the jury lists in question were prepared prior to the passage of the act of June 8th, 1877, no opportunity ever existed for the exercise of the power conferred by section four. No question is made here as it regards the number of names placed in the separate compartment. It is not stated that such number was in excess of one hundred, the number provided for in section four, nor that it was less than that number. Had the whole number of names of persons liable to jury duty residing within five miles of the court-house exceeded one hundred, and had the jury commissioners, at the time of drawing, confined the drawing to a less number than that of the whole number of persons having the qualifications indicated by the statute, a question might have been presented here, whether such a rejection from the drawing of the names in excess of one hundred could be made at any other time or in any other manner than that pointed out by the law. Blit as it neither appears that names of jurors residing within five miles of the court-house were excluded, nor the number of one hundred exceeded, no such question arises for consideration.

We cannot assent to the proposition that the action of the jury commissioners had no other sanction than that of section four of the act mentioned. Assuming that the jury commissioners, when called upon to draw from the persons residing within five miles *225 of the court-house the names of a certain number to supply deficiencies, found that no such discrimination among the names in the box had been made, as it was essential to the discharge of the duty imperatively imposed upon them by section two of the act, that such a discrimination should be made, they had clear implied authority to make it. Whether they selected in the first instance from the whole number of the names in the box those subject to the drawing to supply deficiencies, and from among such made the drawing, or drew from the box at large, rejecting such as were not subject to such drawing as their names were drawn, is entirely immaterial. The difference between the two modes of procedure is formal and not substantial, and, as in ease of a drawing at such time and place, form is not made material by the statute, we can only look to the substance of the act. State v. Jennings, 15 Jtich. 42, for this reason, does not apply to the case in hand. It is matter of indifference whether a previous opportunity for making such selection had been afforded by the law and neglected, or had not been afforded, the duty of selection was equally inoperative. The jury commissioners were not performing an act for their own benefit, permitted to them on conditions, but an act essential to the administration of justice, and every intendment must be made in favor of the sufficiency of their authority.

There was not, in any legal sense, an irregularity, as affecting the legal results of the drawing, and therefore it is not necessary to examine the authorities cited by the appellant bearing on the question of what irregularities in the drawing and impaneling of juries are fatal. The exception to the drawing and impaneling of the jury was not well taken.

The next exception to be considered affirms that, upon the trial, the court denied the accused the right of peremptory challenge as allowed bylaw. The defendant was entitled to'five peremptory challenges. Gen. Stat. 747, § 3. He claimed the right to challenge four of the persons drawn and returned as petit jurors. His challenge was allowed as to two of the jurors and disallowed as to the other two. The consequence was that the jury by whom he was tried included two to whom he had peremptorily objected, notwithstanding the whole number of chal *226 lenges allowed by law had not been exhausted at the time of the attempted challenge.

The ground on which such exclusion is defended is that the two persons who were permitted to sit as jurors, notwithstanding such peremptory challenge, had been drawn from the supernumerary list to supply the places of two others who belonged to jury No. 1 who had been excluded by challenges. This virtually confines the right of challenge in criminal cases so as to affect only the persons placed in one of the juries organized for the trial of civil causes. It assumes that other persons drawn and impaneled are not to be excluded, whatever objection may exist in the mind of the accused, to their occupying that relation , to him.

It is too clear to admit of doubt that the right of the accused to challenge any five of the persons drawn and returned as jurors could not be affected by the peculiar constitution of the regular juries and the supernumerary list for the trial of civil causes. In the first place, there must be a new jury impaneled in each criminal case. Gen. Stat. 747, § 8. The direct and intended effect of this' section is to make the selection of jurors in criminal cases depend wholly on the results of a drawing in open court, in the presence of the accused, from the whole number of persons serving as jurors. The occasions of its adoption were that a different rule prevailed in civil causes. In the last-named case parties were required to take a standing panel, deficiencies arising to be supplied from the list of supernumeraries.

Accordingly in presenting to the accused in the present case jury No. 1, only competent for the trial of civil causes, for his peremptory challenges, it was assumed that the jury thus constituted was competent to try the case. S.uch was not the fact independently of the assent thereto of the accused. It is true that the appeal does not present to us any objection to the mode in which the jury was impaneled other than that of the dis-allowance of the challenges, and therefore we are not called upon to say that there was error in constituting the jury otherwise than by a new drawing; but upon the question of the right of peremptory challenge, this consideration cannot be decisive. It may well be that the accused was content to waive, a new draw *227 ing, but he has evinced no intention to waive the right of peremptory challenge and its proper incidents. The right of peremptory challenge is not a formal right merely, but substantial and vital to the proper administration of criminal justice. The fact that the accused was willing tp waive any advantages that might arise from an impartial drawing in his presence is no ground to assume that he intended to waive objection to the sitting of persons whom he considered unfit, for reasons satisfactory to himself, to sit as jurors in a matter affecting him. The state could not well insist that one concession should embrace the other, because they were not necessarily connected or dependent on each other.

If the state and the accused should agree together that the jury should be impaneled in alphabetical order, or in any other way that might mutually suit them, while it is not for the court to deny them that right, still we cannot travel beyond the terms of their concession and make out a new law for the case, composed in part of rules governing civil procedure and in part of the rules applicable to criminal proceedings.

On the contrary, the right of challenge being a distinct and substantive one, must be deemed unaffected by such concession, and must be administered in the mode prescribed by the law applicable to the case. Charleston v. Kleinbach, 2 Spears 418 . The method of drawing jurors in civil cases is stated and distinguished from the mode of drawing in criminal cases in this case. It was material that such distinction should be pointed out, as it was a qui tam action and had to be referred to either the one class or the other. It was held to appertain to the class of civil causes.

The principal question in the case appears to have been whether the plaintiff could challenge peremptorily unless that right was fully exercised before the defendant was called upon to make his peremptory challenges. It was held that where in civil causes it was necessary to have recourse to supernumeraries they were considered as talesmen, and that if either party desired to exercise the right of challenge there should be a new drawing among such persons. This undoubtedly implies that the right of peremptory challenge might be exercised against persons on the *228 supernumerary list. The object of redrawing was to prevent the party intending to challenge peremptorily from virtually selecting a jury by means of his challenges, as he might to some extent do if the supernumeraries were called in their order on the list, that order being known to the party intending to challenge. Whatever may be considered the ruling of this case, it is in terms confined in its application to civil causes.

Durant v. Ashmore, 2 Rich. 184 . In this case O’Neall, J., says : “ After jurors have been challenged and others have been drawn in their places, neither party can, under the act of the legislature, challenge the jurors so drawn.” State v. Kleinback, 2 Spears 418 . It is to be presumed from the error in this citation that it was made from general recollection.

The report of the case of Charleston v. Kleinbaeh, which it is presumed is the case to which reference was here intended, does not appear to go to the extent or even in the direction claimed for it. However this may be, both were civil causes, and the rule laid down must be confined to such causes. Although the distinction is not clearly drawn in Durant v. Ashmore, independently of the nature of the case itself, yet what is there said is so said on the authority of Charleston v. Kleinbaeh, and the latter case pointedly enforces such distinction. It is not necessary to consider the rule stated in Durant v. Ashmore in its application to civil causes, but clearly it has no application to criminal causes. Whatever may have been the proper construction of the act of 1841, ( 11 Stat. 154 ,) that act is inapplicable to criminal cases at the present time, the right of peremptory challenge being governed at the present time by the General Statutes, § 3, p. 747. By the terms of the present law no limitation, except as to number, is imposed upon challenges in criminal cases.

As it regards the crimes of murder, manslaughter, burglary, arson, rape and gránd larceny, reference is made to pre-existing laws in the following words': “In the manner prescribed by law;” but these words are not used in the subsequent part of the section that relates to the right of peremptory challenge in all other criminal cases.

It must be concluded, therefore, that the right as conferred by the General Statutes in cases other than those specifically enumer *229 ated above, was intended tó be complete as thus quoted without dependence on any preceding statute of' limitation, and to be interpreted only in the light of the rules of law applicable to the subject. It must be concluded that the challenges were improperly refused.

The appellant alleges that the indictment is defective, “in that the statement of the offence charged does not contain an averment of a conspiracy to cheat by means of false tokens or a counterfeit letter in another man’s name.”

This is connected with the next objection, to the effect “ that ■the averment of the purpose and object of the conspiracy charged does not import a crime under the laws of this state.” If the latter proposition is unfounded, the first stated is immaterial. The precise question, then, is whether a charge of conspiracy against a public officer and others conspiring with him, with intent to cheat and defraud the state, as it regards matters appertaining to the duties of such public officer, imports a crime by the laws of this state independent of an averment of the employment for that purpose of a “ false token or a counterfeit letter in another man’s name.” This is a much narrower question than -that discussed at bar, but includes all that need be considered in •the present connection. In considering what may or may not be regarded as an indictable conspiracy, the question must be asked whether the object of the conspiracy was to injure the public or private individual. If it was to injure the public, then the public has a direct interest, either residing in the community at large or in the state as a corporate body; if to injure an individual, then the public has an indirect interest only, as concerned in the maintenance of order, the administration of justice, and the like. As an indictment is, in its nature, one of the modes •of redressing public wrongs, it is material to inquire whether the wrong alleged in its direct and primary intent tended to the public injury, .or became such only through the intervention of statutes and rules of law, defining what private injuries should be regarded as detrimental to the public.

A conspiracy to injure or defraud the public is indictable as •such, independent of the special character of the means employed for that purpose.

*230 This will be found abundantly supported by the authorities. The authorities are uniform that a conspiracy to injure or defraud the public is indictable at common law. Johnston, J., in State v. De Witt, 2 Hill 282 , correctly says: “ All agree that 'a combination to do a public mischief is indictable.” He instances the cases of injuries to health, vending unwholesome food, manufacturing base articles for public sale, imitating good ones, and to defraud the revenue.

All the counts of the indictment charge a conspiracy of the defendant, as state treasurer, with divers persons, to cheat and defraud the state out of a large sum of money. If, therefore, the charge is sufficiently full and clear, there can be no doubt but that it sets forth an indictable offence. It is contended, however, that, independently of a statement that such conspiracy to defraud was intended to be carried out by the use of a “ false token or counterfeit letter in another man’s name,” the facts charged do not constitute a crime. This argument ignores the important distinction between acts tending directly to the public injury and acts primarily affecting individuals, made criminal only as they affect the administration of justice, or as they are to be accomplished by means of false tokens and pretences. The causes illustrating this distinction are numerous. State v. De Witt, 2 Hill 282 , and State v. Shooter, S Rich. 72, are cases of this class. In the first-named case the act in question was the destruction of a deed, while the latter case was one of the attempt to fabricate evidence by procuring a deed through false pretences. In both the inquiry intended primarily affected individuals alone, but became indictable through the fact that the creature of false testimony and the destruction of true testimony, tended to injure and impair the administration of justice.

In Lambert v. People, 9 Cow. 578 , Senator Spencer, who delivered the leading opinion, holds that an indictment will not lie for a conspiracy to produce a private injury, “ which is not a crime in itself, and does not affect the public or obstruct further justice.” If the question is as to the character of the conspiracy, as judged by the nature of its object, this statement is free from objection. The mere fact of intending to cheat or defraud an individual is not, in itself, criminal, whether on the part of one- *231 or many. When it becomes criminal it is through the means intended to produce such effect. A false token and counterfeit letter are means of that character. A false token and counterfeit letter are things that may affect others than the immediate object of the cheat; they may be capable, to some extent, of maintaining a credit with the public. A forged note or bill, receipt or letter, attired so that it may become detrimental to the community at large, is a clearly recognized injury to the public. It is not distinguishable from the case of spurious goods offered for public sale, in principle. State v. Rickey, 9 N. J. 293. This subject is fully discussed and the authorities reviewed at large in this case. It is conceded that when the injury is against the public the conspiracy is indictable; but that when the injury is intended to an individual only, it is not indictable,, unless the means employed are criminal.

The objection of appellant, that the certificate referred to in the indictment is not in law “ a false token or a counterfeit letter in another man’s name,” is disposed of by what has already been said.

It is alleged that the indictment is defective, for the reason that the acts charged against the defendant are repugnant and contradictory. This is connected with the further statement that the defendant is charged with having conspired to cheat the state by means which were not calculated to deceive, and not such- as could deceive the defendant, as the officer of the state charged with the performance of the act necessary to the consummation-of the offence.

The first, second and third counts of the indictment allege the means by which it was intended that the state should be defrauded, namely, by a forged pay-certificate, representing-that a fictitious person was entitled to payment on account of an appropriation to pay legislative expenses, attested by the officers of the legislative bodies authorized by law to attest demands of that nature. If there had been such person as C. L. Frankfort, and the state had been indebted in the manner,stated in that certificate, then it would have been the duty of the defendant, as state treasurer, to have paid such certificate in such manner as might be provided by law. On such payment being made, in the due *232 course of his duty at that time, such certificate would have been retained in the treasury as a voucher for such payment, and on its production it would have appeared that such payment had been properly made.

The substance of the appellant’s objection is, that a false voucher by a disbursing officer, in order to cover the unlawful abstraction of funds in his hands, is not so to be regarded as a means of deception. Possibly it may be that it does not come up to the conception of a false token as essential for the foundation of a criminal charge in the case of an attempt to cheat a private person, when it was not intended, or of a nature to be so placed that the community at large might be affected by it as a means of obtaining credit; but as to this we are not called upon to decide. That such a means of covering a delinquency is not repugnant or contradictory to the idea of deception, is too clear to admit of argument. To manufacture a false voucher for the payment of money is of the very essence of deception.

The next objection to be considered is, “that the indictment is fatally defective in that the offence charged is not set forth and stated with sufficient clearness and certainty; that the means by which it is alleged therein the offence was intended to be and was consummated, are not set out either in substance or according to the tenor thereof; that the warrant or pay-certificate described as the said means, is not set out with sufficient precision and certainty, and by such special and specific description as to numbers, date and other peculiar and distinguishing marks, as to identify the charge, and fully, fairly, substantially and formally to describe to the defendant the crime for which he is held to answer.” It will be considered with reference to the fourth count whether a specification of the means intended for the consummation of the fraud alleged is essential to an indictment of this character. As it regards the first, second and third counts, the state has assumed to set out such means, and assuming such a statement to be necessary, it is clear that even the stringent rule claimed for the appellant has been complied with. The character of “ the pay-certificate ” is described as a warrant on the state treasurer for a sum certain on account of legislative expenses; the name of the fictitious person to be employed is stated; the persons to sign and *233 attest the certificate are stated. The crime was consummated when the parties to the transaction agreed together as to the purpose of defrauding the state, although the intended injury remained to be consummated. If the conspiracy had related to an instrument existing prior to the time of such conspiracy, there might be a propriety in pointing out the instrument intended by indubitable marks. Had this been the case, the identification afforded by the description in the indictment would still have to be regarded as complete. There would be no reason to assume that more than one such certificate as that described in the indictment existed rendering further specification necessary to identification. But as the conspiracy had for its object the production of such a certificate, all that could be averred with propriety was-what the conspirators may have agreed concerning it. If numbers, names and marks subsequently put on the paper were not then in contemplation of the parties as material features of the .certificate, they could not properly bo alleged as comprehended in the direct objects and intents of the conspiracy. Looking at these three counts in the light of the charges in the indictment alone, this court cannot say that more nor less than is stated was comprehended in the terms and intention of the agreement of conspiracy.

The objection here is to the indictment and not to the character and sufficiency of the proof under it, and, looking at the indictment alone, we cannot affirm that anything is wanting that we have a right to assume as existing and forming part of the scheme of conspiracy. The crime charged is fairly, substantially and formally described, so that no possible doubt could exist in the mind of the defendant as to the nature of that for which he was held to answer. As it regards the fourth count, the objection assumes a different character.

This count charges that the persons indicted, on a certain day unlawfully, falsely, fraudulently and corruptly did conspire, combine, confederate and agree together, by divers false pretences and indirect means, to cheat and defraud the State of South Carolina of a large sum of money, to wit, “ the sum of four thousand • dollars, to the great damage,” &c.

This count affirms two things. First. An unlawful conspiracy *234 to defraud the state out of a certain sum of money. Second. That the means of accomplishing it was to be by false pretences and indirect means.

Now, assuming that this was all that was agreed upon among the conspirators, an assumption that we are bound to make for the purpose of considering this count, did such act amount to an indictable offence?

That such an act of conspiracy is indictable, the authorities afford abundant means of establishing; but there are not wanting sufficient reasons why the common law, that seeks to afford a public remedy for every public wrong, should furnish the means of punishing such a conspiracy. To illustrate the princi- • ple involved, suppose that a conspiracy had been formed to rob on. the highways, but no person had been designated as the special subject of such robbery, and no definite place or means of overpowering the victims of the plot formed part of the agreement of conspiracy. Money and arms are collected to carry out the conspiracy, the band is divided, distributed and posted, some for purposes of direct attack, others to watch against surprise, and others to reinforce a weak party. No action has yet appeared to put in exercise the formidable combination of force and skill. At this stage of the operation the parties are arrested and charged with a conspiracy to rob. Must the charge fail because the terms of the conspiracy did not embrace circumstances of time, place and person, as it regarded the accomplishment of its purpose ? If so, then it would not be possible, even after the plan had been carried out, to punish the conspiracy, for, in the first place, the crime was consummated, if at all, at the moment the agreement was made, and if conviction in any such case could not take place prior to the actual commission of the intended crime, it was because no crime had been committed, nor could the character of the conspiracy in that.respect undergo any change after it was consummated by an unlawful agreement.. In the second place, the moment the right to punish the conspiracy arose it would be destroyed by merger in the offence of higher grade flowing from it. It would be a just reproach to the common law if it afforded no means of dissipating combinations threatening the destruction of legal security,- however formidable *235 they might be, because the objects were general and threatened the community indefinitely, and were not aimed at some particular member of the community, or to some other limited and defined sphere. On the contrary, as we have seen, one of the great objects of this jurisdiction is to protect the community at large; and the protection of the individual is subordinate to that end.

■ The principle just illustrated applies with equal force but under altered circumstances in the case under consideration. Here the protection demanded is for the public property of the state, and those who eonfessedly violate the law by conspiracy to’ obtain unlawful possession of such property ought not to be permitted to shield themselves by saying that the object of their conspiracy was to lay hold of any property of the state they could reach by any means, and not to appropriate any designated piece of property by predetermined means. Yet this is the position the defendant must assume in order to ask that the fourth count may be adjudged bad. The question must be brought to the test of the authorities which will now be considered.

King v. Ecles, 3 Doug. 336 . This was an indictment for a conspiracy to impoverish “ H. B.” and to deprive and hinder him from following and exercising his aforesaid business of a tailor. It was moved in arrest that the charge was general. It was held that it was not necessary to state the means, as the end was well stated. It is clear that the court regarded the conspiracy as indictable in respect of its object alone, and therefore a statement of the means was not essential to the description of the offence. It is not necessary to examine the assumption on which the conclusion rested, as the conclusion itself is clear that it is not essential in order that a conspiracy should be indictable that the means should be predetermined. Rex v. Gill, 2 B. & Ald. 204. This case is to the same effect, and the remarks made in regard to King v. Ecles are applicable to it. King v. Turner, 13 East 123. Lord Ellenborough, in this ease, says of King v. Ecles , that it “was considered as a conspiracy'in restraint of trade, and so far as a conspiracy to do an unlawful act affecting the public.” He distinguishes the case in hand as an indictment, *236 for a conspiracy “ to commit a civil trespass/’ and as such not criminal.

Considering King v. Bales in the light of this case, it must be regarded as holding broadly that a conspiracy to do an injury to the public is indictable independent of any agreement as to the precise means by which it is to be carried out. Lambert v. People, 9 Cow. 578 . The indictment here was for conspiracy to cheat a company. The statement of the means was general, as that the defendant agreed, by “indirect and unlawful means,” to cheat and defraud such company. It was held that the indictment was bad, but solely on the ground that the act of wrong was against a private person, and in such case an allegation of a false token was indispensable. The reasons assigned for the judgment rest on the idea that a statement of the means is not essential when the act intended to be performed is a crime or an injury to the public. Commonwealth v. Prius, 9 Gray 127 . The question in this case is identical in- principle with Lambert v. People and received the same solution. State v. Rickey, 9 N. J. 293. The conspiracy in this case was to defraud a bank. It was held that the bank was to be regarded as a private person, and that the indictment did not charge a crime. The same concession is made in this case as in Lambert v. People, that a conspiracy to cheat the public is indictable as such without regard to the nature of the means intended for that purpose. State v. Mayberry, 48 Maine 218 . The conspiracy was to obtain possession of securities by false pretences from private persons. It was held that ■Such a conspiracy was not indictable independently of the means by which it was intended that it should be consummated. Rice, J., says: “ When the act to be accomplished is itself criminal or unlawful, it is not necessary to set out in the indictment the means by which it is to be accomplished.” This is a clear recognition of the rule in question although it does not allude to that feature of the rule that places attempts to defraud the public as within the class indictable in themselves. The case did not suggest so full a statement of the cases to which the rule applied, but holding it as principle it must be regarded as a clear authority, as it regards all the consequences resulting from the application of the rule.

*237 Commonwealth v. Shedd, 7 Cush. 514 . Dewey, J., holds “ that a general allegation that two or more persons conspired to effect an object criminal in itself, or to commit a misdemeanor, or a felony, is quite sufficient, although the indictment omits all charges of the particular means used.”

It is clear on the authorities as iu reason that charging a conspiracy to defraud the state, as it regards its property or revenue, is indictable as such, although no agreement as to the definite means to be employed for that purpose is alleged. The appellant’s exceptions, based on the supposed insufficiency of the indict-met, should be overruled. The appellant’s exception, alleging that the Court of General Sessions, at which the indictment was found, was not duly and legally convened, because no petit jury was summoned or in attendance, is bad. To hold that would be equivalent to holding that if for any reason the venire for petit jurors or its return to the court fails, the court is without legal power to proceed with its' business, a proposition so obviously unfounded that it does not need particular consideration.

The grounds of appeal urged for a new trial will next be considered. The first is that the court erred in admitting evidence of the declarations of It. H. Gleaves and A. O. Jones, as conspirators, not made in the presence of the defendant before evidence other than that of an accomplice had been introduced to connect A. O. Jones with the conspiracy, as charged in the indictment. Counsel for appellant has not pointed out in his argument one exception on which this ground of appeal rests, and none has been found resting on the precise ground advanced. Even on the assumption that corroborating evidence was necessary, and that evidence of acts done and declarations made by the conspirators in pursuance of the conspiracy, had been offered and duly objected to on the ground that the testimony corroborating the evidence of the defendant’s accomplice had not been offered and it had been admitted, that would not constitute an error.

It would involve a question of the order of proofs under the control of the court. When proof of an independent fact is requisite to entitle a party to the introduction of certain evidence, the admission of such evidence, without demanding such proof, is erroneous. That is not a question of the order of proof merely, *238 but of the right to make the proof at all. Tbe object of corroboration is to strengthen proofs already adduced, and not primarily to introduce new and independent facts, and as the evidence offered by way of corroboration must go to the jury with the evidence of acts performed and declarations made by the conspirators in pursuance of the conspiracy, the order in which they were introduced cannot be so material to the defendant as to be ground for exception.

The next ground is that the court allowed the witness, Wood-ruff, “ to refresh his memory by reference to a boob purporting to be a diary, written in phonographic characters peculiar to the witness, and such as could not be verified by the court, and to admitting the said book in evidence as against this defendant, and allowing entries, said by the witness to be there contained, to be translated and read by the witness to the jury.” The case shows that the book in question was referred to solely for the purpose of refreshing the recollection of the witness. The witness, it is true, read from the book, but that is not inconsistent with the use of the book for refreshing his memory; it was, at most, only anticipating what would probably have taken place under cross-examination at the defendant’s request had it not been called for by the counsel for the state. Nothing is found warranting the conclusion that the court and jury regarded the book as resorted to for any purpose other than that of refreshing the memory of the witness. To hold the doctrine contended for by the defendant would be to give immunity to witnesses locking up the contents of their memory in entries contrived to be intelligible to themselves only, to which they could always refer for their own advantage, but to which the court would have no access, however important that might be to the ends of justice.

Such a proposition cannot be tolerated unless established by authority that cannot be shaken.

The counsel for appellant produces no case holding that in order to have resort to such memoranda for the purpose of refreshing the memory of a witness, it must appear that such memorandum is made in characters intelligible to the court and jury without the aid of testimony. It must be presumed that no such case can be found, for it would be inconsistent with the *239 principle of the rule allowing the memory to be refreshed by memoranda made at the time of the transaction to which the inquiry relates. The memorandum must be. the act of the witness and contemporaneously with the event noted, otherwise it would not necessarily be associated with the state of mind that existed when the impression on the memory was made, but, independently of this, it is of no importance, so far as it regards its capability of refreshing the mind of the witness, whether it was written in characters intelligible to the whole community, or in such as were capable of being translated only by' the party himself.

The witness could, doubtless, have given the key to the translation of the memorandum and showed how his method of phonography agreed with and differed from each of the systems commonly practiced, and counsel might have required such information on cross-examination. Had he done so the statement of the witness would have gone to the jury, so as to enable them to judge whether the entry was what the witness represented it to be. This is all defendant could properly ask. It is unnecessary to notice in this connection the discussion drawn from the rule of hearsay evidence and the rule governing the introduction of merchants’ books as against third parties, as these rules have no application to the present ease. It is contended the strength of testimony as refreshed is the clearness and certainty of the recollection of the facts recorded, after having examined the memorandum, and independently of the memorandum itself, and it was the right of the defendant to test this by cross-examination. The only way to get before the jury such legal considerations as should have weight in determining the force of the testimony, was through the charge of the court, wdiich might have been directed to such considerations. This ground of appeal should be overruled.

The next objection to the verdict relates to the admission of entries made in the books of the Republican printing company. It was proved that Woodruff and Jones, two of the conspirators, constituted the Republican printing company. It appears that the books were the business records of Woodruff and Jones. It was claimed that these books contained. memoranda of various *240 transactions that belonged to the acts done by the conspirators in furtherance of the conspiracy. Among other entries $800 was passed to the credit of Woodruff and the same amount to Jones on February 5th-, 1874, the day on which the certificate in question was paid as claimed. It was also claimed that the amount thus paid to Jones and Woodruff corresponded with the amount to which they were entitled under the terms of the arrangement between the conspirators. It was clearly competent that such an entry in the books of Woodruff and Jones should go to the jury as evidence tending to strengthen the testimony connecting them ■ with the conspiracy. The presumption was that the entry was made under their direction, and the way of disproving that presumption lay in one asserting the contrary. The admissibility of the evidence there did not depend on its competency as a declaration of a conspirator to affect his co-conspirator. It was enough to render the testimony competent that it was admissible for any legitimate purpose. This objection is not well taken.

The fourth objection on the motion for a new trial referred to the circumstance that the attention of Woodruff was called to an entry in the books already referred to, and inquiry made as to whether it related to the transactions in question, and which appears to have been negatively answered. The appellant’s counsel moved to strike out the evidence, which was' refused, but no exception appears to be noted. At all events the counsel for the state had the right to call the attention of the witness to any particular memorandum and inquire if it related to the transaction in question, and it was not competent to strike out what was said in reply thereto. It is no ground to strike out evidence that it fails to amount to proof of what was intended by the party introducing it. It does not appear that the memorandum was claimed or read as affording evidence of the matters noted, but was noticed for the purpose of attracting the attention of the witness to the matters referred to in it. This objection is groundless.

The fifth objection, relating to the admissibility of testimony, is based on a ruling of the court admitting in evidence an account from the books of Woodruff and Jones. Although the court placed its decision admitting such entry on the broad ground *241 that as a declaration of a co-conspirator, written by a party beyond the jurisdiction of the court, it was admissible, yet it does not appear that the question submitted involved any such question or consideration. The real question appears from the ease to have been identical with the exceptions already disposed of, and the conclusion of the court appears to be correct, whatever view may be taken of • the proposition submitted in deciding it.

There does not appear on the record any exception to sustain the appellant’s sixth objection, as it regards the admission of evidence relating to the Christopher certificate, and therefore that matter cannot be considered.

The seventh objection relates to questions propounded to the defendant by way of cross-examination, alleging that irrelevant matter was gone into, and that cumulative matter material to the issue was offered in reply to the testimony elicited by such cross-examination.

The only exception that appears in the course of the cross-examination of the defendant is to certain evidence called for by the state, and to which the defendant’s counsel made objection. The memorandum, as to the decision of the court, is as follows: “ The court held the testimony competent, being rendered so by the introduction of the Merriam certificate.”

The objection is not to any particular matter of evidence sought to be introduced, but as it is expressed, “ to this line of questions.” The counsel for the state had called the attention of the defendant, who was undergoing cross-examination, to a class of payments made ’in certificates for legislative expenses, among Avhich was the certificate called the Merriam certificate.’ This Merriam certificate was first introduced to notice by the counsel for the defendant upon the cross-examination of the witness, Woodruff. The fact with regard to it, as testified to by Wood-ruff, was that it was drawn as part of a series of certificates to fictitious persons, intended as the means of drawing money from the treasurer for the personal benefit of different state officers, and that the Merriam certificate was for the share of the defendant, Cardoza. Woodruff, in response to the inquiries of. the counsel for the defendant, testified that on the presentation of *242 this certificate of the defendant, he, the defendant, caused it to be torn in pieces. Subsequently, when the defendant was examined-in-chief by his counsel, this certificate was produced, marked “canceled,” but not torn, as stated by Woodruff; such evidence being intended to destroy the credibility of the testimony of Woodruff, not confined, however, to the statement of the destruction of the certificate, which appears to have arisen as air incidental circumstance merely. On the cross-examination of the defendant the counsel for the state recurred to this subject, and endeavored to show that certificates of the same class with the Merriam certificate had in fact been paid by the defendant under circumstances that tended to charge him with guilty knowledge of the objects with which they were drawn. It must be fairly considered that the whole subject was opened by the counsel for the defendant by the introduction of the Merriam certificate. It would naturally be concluded, from the conduct of the defendant in the case of the certificate drawn for his own benefit, that he was a'party to the frauds of which that formed a part, and thus Woodruff’s testimony, as a whole, would be shaken by proof of such part obtained from that witness himself. It ’must be assumed that this formed part of the object of the counsel for defendant in opening that subject. Such being the case the question of relevancy cannot be considered on the part of the defendant’s counsel, who first opened it. The only inquiry is, whether the evidence elicited followed in the line of that introduced by the counsel for the defendant, so that the whole can be considered as a single subject, and it appears very clear that it did. In fact the defendant’s counsel limited his objection to the line of proofs, thus drawing attention away from the particular matters involved to the general bearing and tendency of the questions. After having entered upon that line of proof he was not in a position to object to its continuance in the same direction by the opposite side, so long as a new subject was not entered upon. This involves a very different proposition from the one familiarly understood, that the introduction of irrelevant testimony by one party does not justify the introduction of irrelevant testimony by the other side. It is enough to say that the counsel for the defendant introduced the subject, and he has no right *243 to complain of its continued consideration. This view disposes of all the matters embraced in the seventh objection to the verdict.

The eighth objection is to testimony given by Solomon and Woodruff in-reply. No exception appears to any part of this testimony, so far as it regards that of Woodruff. The only exception that appears to the testimony of Solomon was to his stating a conversation with Governor Moses, but. it does not appear that any such conversation as the objection contemplated ■ was actually produced in evidence. The exception must be regarded as limited by the character of the testimony received under it. The other matters alleged to have been gone into, stated by the defendant as prejudicial to his case, cannot be considered for the want of an exception to cover them. What has just been said disposes of the matter of the ninth, tenth and eleventh objections.

The remaining objections relate to the charge of the court. Many objections to the charge are stated in the grounds of appeal, some of which are not noticed in the points and argument, and as all matters intended for consideration are required by the rules of this court to be noticed in the points submitted, we must assume that the matters not so presented are intentionally abandoned by the appellant and they will not be considered. The various points made by the appellant will be considered in the order stated in the points and argument.

The sixth objection is that the court instructed the jury that the fourth count of the indictment could be sustained. This ruling is in accord with what has already been said. .

The seventh objection states that the court instructed the jury that the entries in the books of the Republican printing company were made before the conspiracy had been consummated, and contemporaneously with the transactions, and were entitled to be considered in the corroboration of the accomplices. This statement does not exactly conform to the statements of the record. A request to charge was made on this point by which it was sought to exclude the entries in the diary of Woodruff and the books of the Republican printing company from operating as corroborating evidence.

The record states that this had been charged in part and in *244 part had not, but as the charge, as given, is not set forth, we cannot infer what that charge was, unless such is the necessary-inference from what follows on the record.

The court said: “ This evidence has already -been admitted by the court for this reason, that when these entries were made in the note-book of Josephus Woodruff the conspiracy had not been consummated, and, therefore, that they were declarations of Woodruff and Jones in furtherance of the conspiracy.” This statement appears to relate wholly to the note-book of Woodruff, with which it does not appear that Jones had anything to do, and yet the statement follows, “ and therefore that they are the declarations of Woodruff and Jones in furtherance of the conspiracy.”

■ There is evidently something omitted from this statement that it is probable might be supplied if the whole charge was produced. Subsequently the court states: “ But these entries were made contemporaneously with the transactions, and they are not unsupported corroboration, but are facts noted down at the time of the transaction, and, therefore, may go in corroboration of the accomplices.” It is very evident that corroboration was here meant in its general sense as something tending to produce conviction of the truth of previous testimony. There was no technical question before the jury as to whether corroborating evidence existed in the case sufficient to warrant the jury in finding according to their conviction, as to the truth or falsehood of the oral testimony given. They must have understood the court as charging that as it regards the degree of credibility to be ascribed to the testimony of the parties where memoranda were produced, it was in support of their credit that they made such memoranda contemporaneously with the transactions to which the testimony related.

There was other corroborating testimony than that afforded by these memoranda; such, for instance, as the undisputed fact that the defendant paid the certificate drawn to a fictitious person, without inquiry as to the truth of the endorsements thereon. No question could arise as to whether the state was at fault for want of evidence to corroborate the testimony of co-conspirators. Whether necessary or unnecessary, such corroboration had been *245 submitted, and its force alone was to be determined by the jury. Nor did the actual issue before the jury depend on acts and declarations of co-conspirators done and made in pursuance of the conspiracy. Such acts and declarations are of importance where the terms of the conspiracy have to be made out presumptively from the nature of the transactions following such conspiracy, ■and where the fact of such conspiracy is established. In the present case the terms of the conspiracy were the subject of direct proof, and the only real issue was the credibility of the co-con•spiraf rs. So the question was really narrowed down to that of the c idibility of the witnesses, Woodruff, Jones and Lee; and, as blaring on the credibility of the parties who made or authorized the memoranda, the entries were proper to be considered by the jury, so that'if made when and for the purpose they imported, they should be considered as circumstances giving support to such oral testimony.

This objection is not well taken. State v. Brown, 3 Strob. 508 .

The eighth objection, as to the necessity of proof of a false token, has already been disposed of.

The ninth objection relates to the ninth request to charge, which was refused. This instruction was properly refused, as it involved the charge of the judge as to matters of fact.

The tenth objection is based on the refusal of the judge to charge that the payment of the check in the ordinary course of business in the office of the state treasurer, was not to be considered as confirmation of the evidences of the accomplices in the case. It cannot be considered that payment of a certificate or draft by the state treasurer, without any attempt to verify the identity of the person claiming to be entitled to payment, is in the due and ordinary- course of business. It was clearly an act for which the defendant must be presumed responsible, and it was competent for the jury to weigh the circumstances as bearing on the question of guilty knowledge on the part of the defendant as to the character of such paper. This would lead to the conclusion that a charge excluding the jury from such examination, such as was requested by defendant, would not have been proper.

*246 The matter of the eleventh objection has already been considered, and the conclusion reached that the means employed were of a nature to cheat and defraud the state.

There was no error in the charge made upon the twelfth request. The whole matter was left for the consideration of the jury with remarks on the part of the court that have already been explained. It is not possible that the jury could have drawn any conclusion from these remarks prejudicial to the defendant.. The court stated its former ruling in regard to the Merriam certificate, and its adherence to the ground on which that decision was made, but gave no instruction as to the legal effect of such-testimony. It would have been' manifestly improper to charge-that such evidence was entitled to no weight, as it might have a bearing on questions of credibility as affecting the testimony of' the witness, Woodruff, and defendant.

The majority of the court having overruled all the exceptions,, the appeal must be dismissed.

We concur in the judgment herein announced, but cannot concur in the reasonings on the question of peremptory challenge, on which point we have filed our separate opinions, differing between ourselves in the reasons but agreeing in the results.

Henry McIver, A. J.

A. C. Haskell, A. J.