State v. Candler

• Decision Date: 31 December 1824
• Citation: 10 N.C. 393
• Court: North Carolina Supreme Court
• Parties: STATE v. CANDLER.

10 N.C. 393

STATE

v.CANDLER.

SUPREME COURT of NORTH CAROLINA

DECEMBER TERM, 1824

1. A witness who has been convicted of forgery in Tennessee is incompetent in the courts of North Carolina.

2. A witness who, some years before, was much in the habit of receiving and paying away notes of a particular bank, and was an attentive observer of such notes, is competent to prove the genuineness or forgery of a note on that bank, although he may never have seen the president and cashier write, and has never received any letters from them.

INDICTMENT for forgery, in the following words:

"The jurors for the State, upon their oath, present that Zachariah Candler and Elias Jones, both of the county of Buncombe, being evil disposed persons, and designing feloniously to cheat and defraud some

person to the jurors unknown, on the 1st day of April, in the year of our Lord 1823, with force and arms, in the county of Buncombe aforesaid, feloniously did falsely make, forge, and counterfeit, and cause and procure to be falsely made, forged, and counterfeited, and willingly aid and assist in the false making, forging, and counterfeiting a certain note commonly called a bank note, which said false, forged, and counterfeited bank note is as follows, that is to say: [Here follows a copy of the note, purporting to be a note of the Farmers Bank of Virginia for $10], with intention to defraud some person to the jurors unknown, contrary to the statute in that case made and provided, and against the peace and dignity of the State."

The second count was similar to the first, except that it charged an intention to defraud the president, directors, and company of the Farmers Bank of Virginia.

On the trial, before Badger, J., at BUNCOMBE, it was proved on the part of the State that the note in question was found in defendant's possession, together with paper and other materials suitable for the fabrication of bank notes.

The State then called on a witness Smith to prove the note a forgery. He swore that for ten years he had been acting as a merchant in the town of Asheville; that during that period, and particularly during the first six years of it, he had received and passed away a large number of bills of the Farmers Bank of Virginia, as well as on the otherbanks of that State and this; that during that time more than $5,000 in bills on the Virginia banks had passed through his hands, but the particular proportion of the Farmers Bank he could not ascertain; it had, however, been considerable, and the greater part of the notes had been received and passed by him as genuine more than four years ago, and not one had ever been returned as counterfeit; that he had been an attentive observer of bank notes in general, and especially those of the Farmers Bank; that he had never, to his knowledge, been imposed on by a counterfeit; that he considered himself a competent judge of the notes of the bank in question, and if the notes which he had received and passed were genuine this note was counterfeit. This evidence was objected to, but the court received it.

Garth, an accomplice in the felony, was then called to the prove the fact of forgery. He was objected to on the ground that he had been convicted of forgery in the State of Tennessee; and in support of the objection a duly authenticated transcript of a record from Tennessee was produced, showing that one Barkley had been indicted, tried, convicted, and received sentence for forgery. The identity of Garth, the witness, and Barkley, the convict, was fully proved; and it was also shown that Garth had actually been whipped, placed in the pillory, and

suffered the other punishement directed in the judgment. The court held that the objection went to the credit of Garth, and not to his competency, and he was sworn.

The defendant was found guilty. The admission of the testimony of Smith and Garth formed the ground of a motion for a new trial, which, having been refused, defendant appealed.

TAYLOR, C. J. That rule of common law which renders aperson incompetent to give evidence in a court of justice who has been convicted of an infamous offense is not the consequence of an artificial system, or a state of society peculiar to certain communities, but is founded in the constitution and nature of human associations generally, and is dictated by the necessity, universally felt, of maintaining the purity of the institutions through which justice is administered. A man who stands convicted of falsehood by a tribunal having competent jurisdiction of the offense is deprived of the common presumption, raised by law in favor of witnesses, that they will tell the truth; he can no longer be confided in when he deposes to facts and circumstances affecting the rights of others, and therefore the law, that the stream of justice may not be polluted, will not suffer such a witness to be heard. The objection attaches to his state or condition, which, whenever it is necessary to be considered in relation to its influence on the security of others, may be taken with propriety, if no technical rules interpose to prevent it; for the subject itself is of a moral nature, independent of the conventions of men; and as truth and justice are not confined by geographical limits, but are coextensive with the concerns and relations of civilized communities, the crime which, in reason, renders a witness incompetent in one country must do so in all. The principle of the exclusion is universal, and ought to be binding everywhere, though it may have peculiar modifications stamped upon it, according to the usages and manners of different nations. In some shape or other witnesses have been deemed incompetent on a conviction of certain crimes in every civilized state, a coincidence of sentiment and practice which can only be ascribed to a correct influence from a principle of natural justice. In the civil law a great degree of strictness prevailed with respect to the competency of witnesses. Its rules excluded many persons for objections which, in our law, are confined to the credibility. They rejected not only all persons who were rendered infamous by any condemnation, butalso those in whom there was a suspicion of the state of good fame, by order for his apprehension. They would not even allow fathers, mothers, or children to give evidence against each other. 1 Pothier, 519.

They even rejected persons of particular occupations and whole tribes of people. Calvinus; 1 Atkyns, 37. But the strictness of the rule of that law was relaxed according to the necessity of the case; and its extreme rigor rendering it, in some cases, insufficient to the detection and punishment of crimes, the courts were compelled to prefer practical expedience to the vain attempt at theoretic perfection. Thus we find that a modern writer on the imperial criminal law, as practiced in Saxony, states that even incompetent witnesses are sometimes admitted, if the truth cannot be got at, and this particularly in facts and crimes which are of difficult proof. Gail Lib., 2. The superiority of our law consists in its laying down the rule, with its proper exceptions and limitations, and leaving nothing to the discretion of the courts. A concurrence between the two systems on general principles is thus shown; but it results from it that it would be embarrassing to decide on the competency of a witness who had been declared disqualified in a State where the civil law prevails. Wherever the common law forms the basis of the jurisprudence of a State, and a witness is disqualified either by that or by statute, of which proper evidence is exhibited to a court here, I can see no reason wherefore the witness shall not be excluded. It is admitted fully that wherever the elementary writers on evidence discourse on the necessity of producing the record of conviction in order to exclude a witness, they mean a record of some court...