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evidence on a criminal prosecution, as he cannot afterwards avail himself of the record of conviction in any future suit, m order to prove the criminal act(1). For this reason, it is conceived, on an indictment for perjury the party injured may be a witness, whether the prosecution is by the common law or founded on the stat. 5 Eliz. c. 9., which gives him half the forfeiture incurred; for, if in an action to recover his moiety he would be precluded from giving the conviction in evidence, the objection against his competency seems to be removed. *
Inth= An exception, however, has been made to this general
of forger;. ruje^ m tl)e case Qf a progecutjon for Ibrgery, in which the
party, by whom an instrument purports to be made, is not admitted to prove it forged, if he would either be liable to be sued upon the instrument (supposing it genuine), or be thereby deprived of a legal claim against another (2). And it seems to be the prevailing opinion, that his incompetency is not confined to the single point of falsifying the hand-writing, but that he is equally incompetent to prove any other fact, which contributes to the proof of the forgery, or, in other words, any fact conducive to the general conclusion. This subject was much discussed in a late case (3), where, on a prosecution for forging a promissory note, on which there was an indorsement in the prisoner's hand-writing, that a year's interest had been paid, one of the points reserved was, whether the person, by whom the note purported to be made, ought to have been permitted to prove that he had never paid any interest on the note,
(i5 Bartlet v. Pirkcrsgill,4l;.3St,577. case, i Leocli 10. Caffy's esse, 2 East's
n. R. v. Boston,4 East, 581.Smith P. C. 995. Taylor's case, 1 Leach,
v. Rummens, 1 Campb. N. P. C. 9. 155. Crocker's case, 2 New Rep. 87. Hjthawayv. Barro«., I Canipb. N. P. (3) C rocker's case,Salisb. Ass 1805,
C. 1.51. 1 Taunt. 520. cor. Le Bljnc J., 2 Bos. ft Pul. N. R.
(2J Watts'* raw, Haid. 331. 3 Salk. 87.90. R. v. Bunting, 2 Last, P. C.
172. s.C. KhcJesS rjse, 2 Str. 728. 996.
as was pretended by the indorsement. This evidence was received on the trial, the fact of the forgery having been first proved; but, according to the report, it seems to have been generally understood that the majority of the judges considered the evidence inadmissible•. When, however, the fact is merely collateral, and does not in any way contribute to the proof of the forgery, as, where a witness is called to prove himself the person, whom the prisoner intended to personate or describe, in such a case his testimony has been admitted, (1)
It is scarcely necessary to add, that if the witness would not incur any loss, nor be liable to a suit, whatever may be the result of the prosecution, his evidence ought to be received. Thus, on an indictment for forging a banknote, in the name of a cashier of the bank of England " for the governor and company," the cashier, not being chargeable, may be a witness (2). And on a prosecution for forging an acceptance to a bill of exchange, where the banker had paid the bill, but suspecting a forgery had not debited the person whose name was forged, this person was admitted to give evidence. (3)
Upon what principle, it may be asked, is a party, by whom an instrument purports to be made, incompetent to prove it forged? In Watt's case (4), on an information for
f l) Parr's case, 2 Leach. Cr. C. 487. (*) Watt's c«e, 3 Salk. 172 , more
491- 2 East. P. C. 997. S.C. fully reported in Hardr. 331. Sec 4
(!) Newland's case, 1 Leach, Cr. C. Burr. 2154., where l.d. Mansfield sajs
3Jc. that this and other cases of the same
(3) Usher's case, 1 Leach Cr. C. kind w«re " not considered or looked
57-; and see Well's case, liull. N. P. into."
* Lord Ellenhorough C. J., the Chief Baron Macdonakt, Mr. Justice Lawrence and Mr. Justice Le Blanc thought the witness admissible, because it had been sufficiently proved before, that the note was not signed by him; and they 'bought him admissible to all points except that of the forgery. Some of the other judges seemed to think, that to points perfectly collateral he would have been admissible, but they considered the point, to which he was called, as contributing to prove the forgery. M.S.
the the forgery of a deed purporting to be the revocation of a will, it was adjudged by the barons of the exchequer after a conference with the judges of the King's Bench, that no legatee named in the will, nor any other person who is a loser by the deed, or who may receive any advantage from the verdict, can be a witness for the prosecution: and a distinction was made between the case of an indictment for a battery, (where, it was admitted, the person beaten may be witness, because he can reap no benefit by the verdict in another suit,) and the cases of forgery, perjury, or usury, in which, it was said, the party aggrieved may have an ad-' vantage by the verdict, and therefore shall not be received as a witness. It is however now an established rule, that on a prosecution for perjury (1) the party aggrieved is competent: and, that a person who has borrowed money on an usurious transaction, is also a competent witness for the plaintiff in an action for penalties against the lender (2); for he gains nothing by the event of the suit, nor can he give the judgment in evidence in an action against him for the money lent. The case of forgery, therefore, stands by itself, and is considered an anamoly in the law of evidence. The reason assigned in Watt's case is, that the witness would receive a benefit from the verdict; and it has been suggested (3), that he is interested to procure a conviction, on the ground that a conviction would have the effect of inducing a forfeiture, and thus defeat every legal claim or security, which the prisoner might have upon the instrument. On the other hand, it may be said, if the party, by whom the instrument purports to be made, were admitted a witness, he would not be allowed afterwards to produce the record of conviction in a civil suit for the purpose of proving the supposed forfeiture, because the parties in the action would not be the same as in the prosecution, but principally, because the conviction must have proceeded partly upon his own testimony. And, if he would be pre
(1) See ante, p. 87. («). 1151. Smith v. Prager, 7 T. R. 6a.
(tj Abraham 9. t. v. Buria, 4 Burr. See ante p. 39.
(3) 1Ea»t, P.C.994.
eluded eluded from using the record of conviction against the prisoner, and might therefore be admitted to give evidence on the trial consistently with the general rule; still Ies9 reason is there for excluding him in those cases, where the instrument purports to be made for the benefit of a third person, or where it has since become a third person's property, in either of which cases it would not be liable to forfeiture. With regard to any probable advantage which the witness may be supposed to receive from a conviction, (whether by the practice of impounding forged instruments, or by the prisoner's being disabled from giving evidence in any future suit, or from the great probability of his failing in an action in consequence of the discredit which a conviction must throw upon the instrument,) these are circumstances which a jury would be directed to consider as forming a strong bias on the witness's mind, but which cannot render him incompetent.
Of certain Exceptions to the general Ruli on the Subject of
It has been before stated as a general rule, that all persons, who gain or lose directly by the event of a cause, are incompetent to give evidence. There are, however, several exceptions to this general rule: some, by act of parliament, as, where informers and the inhabitants of parishes or other districts are admitted; others, from necessity or a principle of public policy, as, where evidence is received from persons who are entitled to rewards on convictions, or from agents, factors, or servants. Objections on the ground of interest proceed upon the supposition of too great a bias in the mind of the witness, and the public utility of rejecting partial testimony. The presumption of bias may be taken off, by shewing, that the witness has as great or greater interest the other way, or that he has given it up; and the presumption of public utility may be answered, by shewing,
that that it would be very inconvenient, under the particular circustances, not to receive such testimony. (1)
First, as to the evidence of informers;
informers. By the common law, informers, who are entitled under penal statutes to part of a penalty, are not competent witnesses (2). But by the particular provisions or policy of several acts of parliament they may be admitted. Where a statute can receive no execution, unless a parly interested be a witness, there he must be allowed, says Ch. B. Gilbert; for the statute must not be rendered ineffectual by the impossibility of proof. (3). Thus, by stat. 2 G. 2. c. 24. s. 8. against bribery at elections, the legislature in giving an indemnity and discharge to any person offending against the act, who shall discover any other offender so that he may be committed, must also have intended that he should be competent to give evidence at the trial; and therefore in an action for penalties he has been admitted (4). So, in a prosecution on stat. 21 G. 3. c. 37. against exporting machinery, the informer is competent (5). So, on a prosecution for penalties under stat. 9 Ann. c. 14. s. 5., the loser of money at cards may prove his loss (6). And, on a prosecution under stat. 23 G. 2. c. 13. s. 1. for seducing artificers to go out of the kingdom, the prosecutor is a competent witness, although entitled to a moiety of the penalty (7). There is no express provision in either of the three acts of parliament last mentioned, for admitting the evidence of the party interested. In the act of the 32 G.3. c. 56. for preventing counterfeited certificates of servants' characters, there is a clause (8) to that effect; and a similar
(1) By Lord Mansfield. I Burr. Mead v. Robinson, Willes 425. He
422. ward v. Shipley, 4 East. 182.
(1) R. v. Tilly, 1 Stra. 315. R. v. (5) R. v. Teasdale, 3 Esp. N. P. C.
Stone, a Lord Raym. 1545, R. v. 68.
Bliney, Andr. 240. 3 Burr. 1473. (6) R. v. Lockup, Willes, 425. (<). 4 East, 181. (7) R. v.Johnson, Willes Rep. 425.