Commonwealth v. Price , 76 Mass. 472 ( 1858 )

Metcalf, J.

1. The court are of opinion that the defendant has no legal ground of exception to the instructions which were given to the jury concerning the testimony of his accomplices. Commonwealth v. Brooks, 9 Gray, 299. United States v. Kessler, Bald. 22. Regina v. Stubbs, Dearsley, 555, and 7 Cox C. C. 48. 1 Greenl. Ev. § 380.

2. Nor can we sustain the exception taken to the instruction “ that it was immaterial where the defendant intended to pass the bill.” The only plausible reason for this exception is found in the form of the indictment, which alleges that the defendant had the counterfeit bill at Boston, “ with intent then and there to utter and pass the same.” In the first place, the words “ then and there,” in that part of the indictment, were needless. But, without deciding that they may therefore be rejected as surplus-age, we construe them as if they had been inserted before the words “ with intent,” so that they refer to the intent to pass, and not to the time and place of the intended passing. If a comma had preceded and followed the words “then and there,” ■—“ with intent, then and there, to utter and pass the same” — the suggested interpretation of the indictment would have been manifest. And the court will not arrest the course of justice, merely because pleaders are careless or unskilful in punctuation, or do not make such a collocation of words as renders their meaning perfectly perspicuous on the first reading.

3. The court have no doubt that the possession of counterfeit bank bills, in the similitude of the bills issued by or for any bank established in this state, knowing them to be counterfeit, and with intent to pass them in another state, is a punishable offence under the Rev. Sts. c. 127, § 8. See Commonwealth v. Cone, 2 Mass. 132.

4. The authorities warrant the admission, in this case, of the testimony that the defendant, several days after the passing of the bill mentioned in the indictment, had in his possession other counterfeit bills. Archb. Crim. Pl. (13th ed.) 475, 619. 1 Greenl. Ev. § 53. Bottomley v. United States, 1 Story R. 143.

5. The exception to the ruling, that Stanton, the accomplice, was not bound to answer the question put to him, on cross-examination, must be sustained. He must have been fully aware of his privilege, from the beginning, and should have claimed it earlier, in order to have secured it. If a witness consents to testify at all, so as to criminate himself as well as the defendant, in the matter on trial, he must answer all questions legally put to him concerning that matter. He cannot be allowed to state such facts only as he pleases to state, and to withhold other facts. Foster v. Pierce, 11 Cush. 437, & cases there cited. Low v. Mitchell, 18 Maine, 374. If he could be allowed so to do, injustice might be done to the defendant, either by the keeping back of testimony which would tend directly to his acauittal, or which would so discredit the witness as to induce the jury wholly to disregard his previous testimony

The lilce exception to the ruling, that Cowee was not bound to answer certain questions, must have,been sustained, if be had not subsequently offered to answer them. But, as he made such offer, and the defendant’s counsel declined to renew the questions, that exception is overruled.

Exceptions sustained.