State v. Twitty

• Citation: 9 N.C. 248
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 December 1822
• Parties: STATE v. ALLEN TWITTY.—From Lincoln.

9 N.C. 248

STATE

v.ALLEN TWITTY.—From Lincoln.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1822

1. Upon an indictment for uttering forged money knowing it to be forged. evidence may be received of former acts and transactions which tend to bring home the scienter to the defendant, notwithstanding such evidence may fix upon him other charges beside that on which he is tried.

2. An affidavit for the removal of a cause which does not set forth the reasons of affiant's belief that justice cannot be done in the county from which it is removed is insufficient.

3. An indictment for forgery should not only set forth the tenor of the bill or note forged, but should profess so to do.

4. In an indictment under the act of 1819 to punish the making, passing, etc., of counterfeit bank notes, if the note alleged to have been passed be of a bank not within the State, the indictment should aver that such a bank exists as that by which the counterfeit note purports to have been issued.

THE defendant was indicted under the act of 1819, more effectually to punish the making, passing, or attempting to pass counterfeit bank notes. The indictment contained two counts. In the first, the defendant was charged with passing as true to William Erwin "a false, forged, and counterfeited bank note, purporting to be a good, genuine note, issued by order of the president, directors and company of the Farmers Bank of Virginia7 which said false, forged, andcounterfeited note is in substance as follows, to wit:" The note was then set out in the indictment, and appeared to have been issued by the president, directors, and company of the Farmers Bank of Virginia, payable to "Ch. Johnson."

The second count charged the defendant with an intent to defraud "the corporation of the State Bank of North Carolina," and with passing as true, to William Erwin (who was agent of the said corporation) "a false, forged, and counterfeited bank note, purporting to be a note issued by order of the president and directors of the Farmers Bank of Virginia, which said note, last above mentioned, is in substance as follows, to wit:" The note as set out in this count appeared to have been issued by the president, directors, and company of the Farmers Bank of Virginia, payable to "C. H. Johnston." On the trial below, the bill offered in evidence showed the name of the payee to be spelled C. H. Johnston. It was objected by defendant that there was a variance between the bill as set out in the indictment and that offered in evidence, and that therefore it should not be introduced, but the court overruled the objection and the bill was read to the jury.

The passing of the bill by the defendant to Erwin as agent of the State Bank was proved, and it was also proved that the bill was originally for five dollars, and had been altered to a bill for fifty. In order to show that defendant knew the bill to be counterfeit (a fact charged in the indictment, and material in constituting the crime under the act) the State called on witnesses to prove acts and declarations of the defendant at different periods previous to this transaction in relation to other counterfeit bank notes, as circumstances to show his general acquaintance with bank notes and his skill in ascertaining whether they were genuine. The evidence was objected to on the ground that it must be confined to notes of the same kind, or purporting tohave been issued by the same bank as the one now in question.

The court refused so to restrict the evidence. A witness, Terrell, then proved that twenty years or more ago he was intimate in the defendant's family, and defendant had on one occasion taken the witness upstairs and showed him in a chest a large bundle apparently of bank notes, in sheets and not signed, and observed to him that they were remarkably well executed and that a young man of character might make his fortune with them. It was further proved by two witnesses, Dalton and Lynch, that a tree had been seen in a secret place near defendant's house with a hole bored through it and some small flat blocks near it, and at the same place was a churn and a quantity of paper in the state of pulp; that the defendant had said that he had a way of making money, not, however, from his farm. Other witnesses proved that the defendant had been repeatedly seen at various times in the possession of large quantities of bank notes, and that he had also declared he was in the habit of making spurious money; that he could

at any time procure counterfeit money that could not be detected, and that the proper mode of altering bills was to extract the impression of the number from the bill, and to make a new number with a different plate. To witnesses with whom defendant had been intimate he had made these declarations, and in paying one of them money at different times he had said that particular bills, which he exhibited, were not good, and that therefore he would not pass them to him. Mr. Roane, a gentleman of the bar, testified that shortly after his coming to the bar, and when almost a stranger in the country, he had on some occasions been employed by the defendant to conduct suits for him, and that it was the habit of the defendant, after talking to the witness relative to the suits, voluntarily to make remarks as to the suspicions entertained of his (defendant's) counterfeiting; that on one occasion he said he could procure the services of master workmen, and, to convince the witness, produced a letter which he said was from aworkman who had quarreled with his employers, Murray, Draper, Fairman & Co., and who had offered to execute plates for the defendant, and as a specimen of his abilities had forwarded to the defendant a bill for five dollars; defendant then took a bill out of the letter; said it was a counterfeit, but notwithstanding it was very well executed; the defendant also said that he was in the habit of making and passing bad money. The agent of the State Bank proved that in 1814, when counterfeit notes of the Bank of Cape Fear for three dollars, signed with the name of John Hogg as cashier, were in circulation, he had refused to take any notes for three dollars on that bank; that, having declined receiving one offered by some person, the same note was brought back to the bank in a few weeks, accompanied by a letter from the defendant, which informed the witness that he "might receive this note, for none of the three dollar notes with the name of Joshua Potts were counterfeit," and added that the information might be useful to witness.

The court, in addressing the jury, called their attention to the principle upon which most of the evidence offered had been permitted to go to them; that it being incumbent on the State not only to prove the passing of the bill as charged and its falsity, but also to bring home to the defendant the knowledge of the bill's being counterfeit, and the intent to defraud as charged in passing it, they were to look more particularly to the part of the evidence relating to the passing of the note and more immediately connected with it, but that in ascertaining the knowledge of the defendant that the note passed was counterfeit they were at liberty also to look to the other acts and declarations of the defendant as going, in connection with the evidence more

immediately relating to the transaction, to show them how far he might have been deceived as to the genuineness of the note in question,or, on the contrary, as going to satisfy them that he must have been so well acquainted with bank paper that he could not well have been ignorant of the true character of this bill. That, in relation to these acts and declarations of the defendant, the more distant and detached they were in point of time the less relation they had to the transaction about which the jury were inquiring, and the less weight ought they to have in forming their opinion, and more particularly in relation to the evidence of Terrell, Dalton, and Lynch; that circumstances so detached must be exceedingly light, and that no part of the evidence in relation to the defendant's previous conduct or declarations was to be considered by them as offered for the purpose of proving that he had committed the crimes or acted improperly on other occasions, but only as circumstances which might aid the jury in ascertaining whether the defendant knew the note in question to be counterfeit at the time he passed it.

The jury found the defendant guilty; a motion was made for a new trial, which was refused, and the court pronounced judgment against the defendant, from which he appealed. This Court requested the defendant's counsel to confine his remarks to the grounds on which he relied for a new trial.

HALL, J. The first question arising in this case is whether a new trial should be granted on account of the introduction of improper testimony on the trial below. The inclination of the mind of a majority of the Court is that it should not, and that impression is produced from the principles laid down by Foster High Treason, 245-6, and the cases read from 1 Bos. & Pull., new series, 92, and 1 Campbell, 323. These authorities seem to go the length of proving that where an offense consists in a knowledge of the thing done to be unlawful, evidence may be given to bring home that knowledge to the prisoner, although a disclosure of other facts and transactions for which the defendant is not then on trial may be the consequence. But such disclosure should not prejudice the prisoner; his moral character should be sacred under the maxim that every citizen is presumed to be innocent until the contrary appears, and that presumption ought to be done away with only by evidence proving circumstances connected

with the commission of the offense for which the prisoner is then on trial. For instance, if it were given in evidence that the prisoner had counterfeited bank notes, this evidence might be used to show that in all probability he had a knowledge that the...