Commonwealth v. Miller

57 Mass. 243

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1849
• Status: Published

Opinion

Shaw, C. J.

The defendant having been convicted in the municipal court of uttering three forged notes, as true and genuine, knowing them to be forged, the case is brought here upon sundry exceptions taken by him to the opinions and decisions of that court, in matters of law.

1. The first question may be thus stated: The attorney for the commonwealth produced three notes purporting to be signed by S. F. Belknap, each for the same amount, and of the same tenor and date, and offered evidence tending to show that they were forged, and forged in a particular manner, to wit, by taking a genuine note, and tracing the signature on the alleged forged notes. The commonwealth afterwards offered thirty other similar notes, which had been uttered by the defendant, at or near the same time, with the notes in question, and which were also alleged to be forged. These notes were offered as tending to prove the guilty knowledge of the defendant, that the notes which he was charged with uttering were forged notes. The defendant admitted that he passed the notes, and if they were not genuine, that he knew that fact, and thereupon objected to the evidence. Before such admission was reduced to writing, to be filed, the court expressed an opinion, that in reference to the peculiar character of the forgery charged, the inspection of other similar notes, uttered by the defendant, about the same time, and alleged to have been forged in the same way, might aid the jury in determining the question of the forgery of the notes in issue, and that the evidence was admissible for this purpose ; and, further, that the proposed admission should not be received as a substitute for the testimony objected to, but that the jury should consider the case in the same way as if the admission had not been made. This admission of evidence and direction are the ground of the first exception.

It is very clear, we think, and, indeed, it is not contested, that this was competent evidence to prove the guilty knowledge, with which the three notes in question were passed; or rather that it would have been so, but for the admission offered by the defendant, that if the notes were forged, he knew that fact. We think it very clear, that this admission did not supersede this evidence or render it incompetent. The offer was hypothetical, and was accompanied by an express denial of the forgery. Besides, it was competent for the prosecuting officer to prove and make out his case by proper and legal evidence, without being obliged to rely upon any admission of the defendant. The evidence, therefore, was rightly admitted, for a legitimate and proper purpose ; no exception can be taken to its admission ; and the" only remaining question is, whether the jury might give it any weight on the question of forgery.

If these notes had been offered in evidence, as forged notes passed by the defendant, with a view of showing that he had committed other similar offences, in order to lead to an inference, that he was more likely to have committed this, the evidence would have been clearly inadmissible, as contrary to the settled rules of criminal law established by the authorities. It is true, these other notes were offered as forged notes, which had been passed by the defendant; and they were admitted not because the evidence thereby charged the defendant with other crimes, but because they were competent evidence to prove the guilty knowledge, with which these three were passed; 1 Chitty, C. L. 564 ; Rex v. Ball, 1 Camp. 320 ; Rex v. Wylie, 1 New Rep. 92; and because they had also some tendency to show that the mechanical formation and structure of the notes indicated, that they were not separately written, as a man giving his genuine signature to independent notes would be likely to write ; but that from the exact similitude of the formation of the several notes, some inference might be drawn, that they were formed from one prototype. If they had any tendency to prove that the three notes in question had been formed from one pattern, by tracing, they had some tendency to prove the forgery of these notes in that form. Suppose a question were to arise, whether an instrument, apparently written, were manuscript or lithography ; if a single paper were produced, it might be doubtful; but if many others were produced coming from the same source, having the same minute strokes and marks, and even the same defects and blemishes, this evidence would have a tendency to settle the question of identity of origin.

But, however the question might have stood before Belknap was called as a witness, when he was called, it became necessary that the notes in question should be given in evidence, in order that he might be examined upon and testify respecting them, individually, whether they were forged or' not. He testified that they were forged, and were not his true signatures.

The rule, we suppose, is well settled, that a party cannot offer evidence of character, or of other facts, not within the issue, for the sole purpose of corroborating the testimony of his- own witness; and here the argument is, that Belknap testified under the pressure of a deep interest in the question, and that where so many similar notes were extant, he might honestly declare a particular signature to be forged, when the jury might doubt, whether he could distinguish between the spurious and the genuine, especially if he himself admitted, that it would be difficult for him to distinguish them. Under these circumstances, if, on a comparison of the notes in issue, and the notes produced, they appeared to be formed mechanically, on the same pattern, and after one prototype, it would have a tendency to corroborate Belknap in his testimony that the notes in question were forgeries. If they were offered solely for the purpose of such corroboration, the evidence would be open to the objection. But if this evidence was rightfully admitted, for a legitimate and proper object, it is certainly no objection to it, that it has a tendency to corroborate the testimony of the principal witness. It was competent evidence, tending to prove facts bearing upon the issue, and if it had an influence in corroborating the testimony of Belknap, it was a proper and legitimate influence.

2. The next exception arises from the direction of the judge in respect to the testimony of Dunlap and Jose. Belknap had testified that he had never given any one his name in blank, so that a note could be written over his signature, and in particular that he did not give out such a blank to one Dunlap. Dunlap, on being called as a witness to contradict this statement, and to prove that he had had Belknap’s signature in blank, denied it, both as to the genera] fact, and as to the particular instance. Jose was then called as a witness, to prove that Dunlap, then of the firm of Dunlap & Kingsley, once filled up a note to the witness, which had the name of S. F. Belknap indorsed upon it, which the witness negotiated to one Wood, to whom the note was paid at maturity. The judge ruled, that this evidence was not competent to contradict Belknap as to the point stated.

We can perceive no just ground of exception to this decision. It is difficult to perceive how Jose could be a witness at all. So far as he went to contradict Dunlap’s testimony, who was the defendant’s witness, not upon any fact within the issue, but with a view to impeach the credit due to him, his testimony was wholly inadmissible. Nor, as independent testimony, had it any tendency to contradict Belknap, as to the point to which he had testified. It amounted to no more than this, that he once saw a blank paper, on which a note was filled up, in his presence, purporting to have the indorsement of Belknap upon it. But, whether it was a genuine signature, or a forgery, he does not state or profess to know; nor, indeed, does the question appear to have been asked. Unless it was proved to have been the genuine signature of Belknap, the evidence had no tendency to prove that Belknap had testified falsely in stating, that he had in no instance given out his signature in blank.

3. The next exception turns upon an objection taken by the defendant to a question allowed to be put to the witness Scott. Belknap had testified that Scott kept his books, here, he himself living in Vermont; that he had given Miller, the defendant, one note, of the tenor of those mentioned in the indictment, and but one, and that the notes given in the course of his business in Boston were entered in the books kept by Scott. Scott testified that he was the confidential clerk of Belknap, and that he kept an account, so far as he knew them, of his transactions in Massachusetts; that he knew of his giving one note corresponding with the description of the notes set forth in the indictment; and he stated the facts connected with the making and negotiation of that note. He was then inquired of by the counsel for the prosecution, whether he knew of Belknap’s giving the defendant any other such note than the one he had mentioned. This question was objected to, but the judge permitted it to be put.

The grounds of this objection are not stated in the exceptions. In the argument, it is suggested, that by inquiring whether any such note was issued, the witness was called on to state the tenor, or terms, of such note, and so to prove the contents of a written paper, without producing it, or giving any reason for not producing it. It seems to us, that this objection is without foundation* We cannot perceive that this question assumes the execution of any note, and asks for its tenor or character, as the objection supposes; on the contrary, it assumes it to be uncertain, until the question is answered, whether any similar note, of any contents, had been issued or not; and the question is put with a view to ascertain this fact by the answer of the witness, affirmatively or negatively. If he had answered no, as he might have done, then there was no note, and no contents of any note to be proved ; it was a simple fact. If he had answered yes, that such a note had been given to the defendant, then, on proof of notice to the defendant to produce it, or to account for it and its non-production, it would have been competent to prove the contents. The term “ such ” did not limit the inquiry to a note of a particular tenor or purport, but to the fact of giving any note of the like kind.

4. It was relied on in the defence, that there were confidential transactions between the witness Belknap and the defendant, in which Belknap had given him notes to be negotiated for his own accommodation, and which were not intended to be entered in his books, and therefore would not appear in the books kept by Scott; and evidence to this effect was offered by the defendant. To rebut this testimony, William Whitney was called as a witness, who testified, — his testimony not then being objected to, — that he had taken of the defendant two of the thirty notes alleged to be forged ; and further that, previously, to wit, in December, 1846, and in February and April, 1847, he did receive from the defendant three notes, purporting to be signed by Belknap, and payable to the defendant. Belknap had testified, that all the notes given by him to the defendant, prior to the thirty-three notes, were entered in the books, and Scott had testified, that the three notes testified of by Whitney had not been entered in the books. Whitney testified that these three notes were all paid by the defendant, a short time before their maturity. As the payment of a note before its maturity by an indorser would have the effect to prevent the fact of its execution from being notified to Belknap, who purported to be the maker, it was argued, that this had some tendency to show, that these notes were forgeries, and so were not confidentially given as accommodation notes, not intended to be entered on the books, as insisted on by the defendant. The counsel for the defendant, in the.close, asked the court to direct the jury, that this evidence, coming from the testimony of Whitney, was incompetent and irrelevant, and ought not to be considered by the jury; which direction the judge declined to give, but left it to the jury, and instructed them, that the evidence was competent to disprove the ground taken of private and confidential transactions, not intended to be entered in the books, and that it was admissible for that and for no other purpose. The court are of opinion, that this instruction was right. The evidence had a tendency to prove, that the notes were paid and taken up out of the usual course, and that this was done to conceal from Belknap the fact of their execution ; which he (the defendant) would have no motive to do, if they were obtained and entered in his books in the usual course of business. Besides, the evidence having been received without objection, its weight and effect were for the jury.

5. The last exception is certainly an extraordinary one. The defendant was charged by the grand jury, in three distinct counts, on which the defendant has been -found guilty, with uttering three distinct notes, of the same date, amount, and time of payment, in other words, of exactly the same tenor. But it is objected for the defendant, that he cannot be found guilty on any one count, without affirmative proof showing which one of these notes was before the grand jury, when they drew the first count, and so of each count, and that evidence must be sought from the grand jury, to show how they designated these three notes, and how they arranged them and appropriated them to the three several counts. The court are of opinion, that this objection is quite groundless.

We know what the grand jury did, by the official act which they have returned, the indictment. They charge the defendant with uttering a forged note as true, precisely de^ scribed in all particulars. Before the traverse jury, the prosecutor offers a note of precisely that description, in all particulars, with proof that it was uttered and passed by the defendant, knowing it to be forged. The fact, therefore, is well charged, and fully proved; the allegata and the probata correspond; and why should not conviction follow ? But the defendant says there is another note, and still another, which would have proved the same charge ; be it so, that is no reason why a conviction should not follow, on plenary proof of all the material facts alleged. Had the jury found either one of the notes not to be a forgery, the slightest ■ possible circumstance, or shade of evidence, would have been sufficient to warrant them in finding him not guilty, on either the first, second, or third count, and guilty on the two others. As they found him guilty on all three, there seems no color for the exception; each count was proved by either of the three notes.