Harger v. Thomas

• Decision Date: 22 January 1863
• Citation: 44 Pa. 128
• Court: Pennsylvania Supreme Court
• Parties: Harger <I>versus</I> Thomas.

Page 128

44 Pa. 128

Harger versus Thomas.

Supreme Court of Pennsylvania.

January 22, 1863.

ERROR to the District Court of Allegheny county.

Kirkpatrick & Mellon, for plaintiff in error.

James H. Hopkins, for defendant in error.

The opinion of the court was delivered, January 22d 1863, by THOMPSON, J.

There is in reality but one question presented on this record, although there are several specifications of error; and that is, whether the record of a prosecution and conviction of the plaintiff in error for forgery in Washington county, was evidence for the purpose for which it was received by the court below?

It was offered on the trial as conclusive on the question of the forgery of the note in suit, but was properly overruled as not admissible for that purpose. It was then offered for the purpose of laying a foundation for introducing the testimony of witnesses, examined by the Commonwealth on that trial to prove the forgery, and who have since died. No doubt it was evidence for that purpose, if the testimony proposed of the deceased witnesses was proper to be given on this issue, but that is the difficulty. I do not think it was. The common law rule is that the record of a judgment may be evidence by way of inducement, or to establish the fact of its own existence, although not between the same parties. "Thus the record of a conviction," says Greenleaf, § 527, "may be shown to let in proof of what was sworn at the trial. So in prosecutions for perjury, the record of the case in which the false swearing is alleged is always evidence." But as this record was offered only by way of inducement, to be followed by the testimony taken on the trial of the indictment, it was not evidence unless that testimony was properly evidence.

The rule on this point is thus stated by Mr. Justice Yeates, in Miles v. O'Hara, 4 Binn. 108, where he says, "It is a settled rule of law, that what a witness has sworn on a former trial, between the same parties for the same cause of action, may be given in evidence in case of his death." Phillips's Ev., vol. 1, p. 337, 3d. Am. ed., is to the same effect, but the rule is a little more exactly stated. It is thus: "Where the witness has been examined on the trial of a former action between the same parties, where the point in issue was the same in the second trial," there his testimony may be proved if deceased. Hill & Cowan, in notes 205, 206, and 207, to this volume, cite many cases in proof of the rule, and also of the...