State v. Phelps , 11 Vt. 116 ( 1839 )

The opinion of the court was delivered by

Collamer, J.

In an indictment for forgery, the person or persons, intended to be defrauded may be alleged in general words, as “ Drummond & Co.” This has been holden sufficient as to natural persons, and “ The President, Directors & Co.,” is a good description of an artificial person.

Forgery, at common law, is the false making of any written instrument, for the purpose of fraud or deceit; and the offence is sufficiently alleged, when the forgery and the allegation of fraudulent intent fully appear, though no person is set forth as the one intended to be defrauded. This is a misdemeanor. Therefore, if a bank or corporation is a person, within the meaning of our statute, then this information sufficiently describes an offence against our statute. If a bank or a corporation is not a person, within our statute, then this information describes a common law misdemeanor. In such a case, neither a demurrer nor motion in arrest can be sustained. State v. McLeran 2 Aik. R. 31 1, Commonwealth v. Boynton, 2 Mass. R. 77.

In relation to the admission of Kingman, ás a witness ; — One, who is interested in the event of a suit, cannot be a witness; and one rule for settling that question is this ; could the judgment in this case be given in evidence in another action, in relation to the same subject, in which the witness may be a party ? However it may have formerly been holden, it is now fully settled that the judgment in a criminal prosecution can never be given in evidence in any civil proceeding. (4 Burr. Rep. 2251)Kingmanhad, therefore, no interest in the event of the prosecution, and, on general principles, was an admissible witness. In England it has always been holden, that a person, who would be bound by a paper, if genuine, cannot be admitted as a witness of its forgery. This has been attempted to be sustained on a variety of grounds, to us all unsatisfactory or inapplicable to our circumstances. In seme cases, it is said that the paper is forfeited to the crown, with the other effects of the felon, on his conviction ; and that the crown would never pursue the signer. We have no such forfeiture. Again it is said that the court impounds the paper and so its enforcement, afterwards, is much embarrassed or impracticable. This is unsatisfactory, and the English courts have long viewed the rejection of such witness as an anomaly in the law. Rex. v. Boston. (4 East 582.) Problably, this anomaly was long retained in favorem vitee; as forgery was then a capital felony and its penalty seldom remitted. But now, in England, by statute, (9 Geo. 4, ch. 32.) such witness is admissible. Here, iorgery is not capital and there is no reason for preserving this anomaly. It has been discarded in New Hampshire, Massachusetts, New York and Pennsylvania, and we cannot'recognize it as law.

After all the experience which has been had in criminal ^ jurisprudence, it undoubtedly becomes courts to be cautious in admitting the confessions and admissions of the accused. Even in our own State, - the .Bourns were convicted of murder, on full confession, when no one had been killed. “ A confession must never be received' in evidence, where the defendant has been influenced by any threat or promise.”- —“ The law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner and therefore excludes the declaration, if any degree of influence is used.” (2 Stark. Ev. 49.) In relation to the admissions of Phelps, in this case, we have had .some difficulty. On the one side it appears that the interview with Houghton was of Phelps’seeking; that no admissions were sought or expected by Houghton, and no direct assurances of favor were given to procure them. On the other hand “ upon the trial of Hall for burglary, proof was offered that the prisoner had desired Last to apply to the Justice to admit him as a witness for the crown; but the evidence of such request was rejected, on the ground that it had been made under the hope of being admitted King’s evidence and could not be considered voluntary.” (2 Stark. Ev. 49) That case goes the whole length of holding that whenever he entertains a hope of advantage, though such hope is of his own creating, his confessions are inadmissible. We do not consider it necessary to go that, length. But, in this case, the prisoner proposed to assist, the bank in procuring security for the debt, and expressed the expectation of favor in this prosecution, if he did so. In this he was encouraged by Houghton, who said that he and the bank would give all the favor they properly could. He then proceeded to make the statements. Did he not then act under the expectation of'favor and was not this expectation countenanced by Houghton ? We think it safest to err on the side of humanity and exclude such confessions.

New trial granted.