Opinion
(December Term, 1851.)
1. A witness may refresh his memory by looking at a book of entries kept by himself, without producing the book on the trial.
2. To receive in evidence, under our statute, a certified copy from the Secretary of State of an act of Assembly of another State, it is sufficient that the seal of the State be attached to the certificate, required from the Governor. It is not necessary that it should be attached to the Secretary's certificate.
3. A transcript of a statute, once duly certified by the Secretary of State in the manner prescribed by our law is evidence at all times of its being in force according to its terms unless a repeal be shown.
4. Evidence is admissible as to the genuineness of a bank note, of the opinion not only of cashiers and tellers of banks, but also of merchants, brokers, and others who habitually receive and pass the notes of a bank for a long course of time, so as to become thoroughly acquainted with them and able to judge between a true and a counterfeit bill, and have that knowledge, among other things, tested by the fact that no bill passed by the witness has been returned, though there has been ample time for it, if any of them were not genuine.
5. There can be no accessories in inferior offenses; but whatsoever will make a man an accessory before the fact in felony will make him a principal in trespass and other misdemeanors, as in battery and forgery at common law. Procurers and aiders, therefore, in such cases are principals, and may be so charged in an indictment.
APPEAL from Ellis, J., at Fall Term, 1851, of CHATHAM. (115)
Attorney-General for the State.
Haughton and G. W. Haywood for defendant.
The prisoner was indicted with Aaron Malone and Robert George, a free negro, for passing to one Berry Davidson a counterfeit note purporting to be a note for $20, issued by the Bank of Georgetown, in South Carolina. One count charged, in the usual form under the statute, that all three of them passed the note; and a second, that Malone passed it, and that George and Cheek incited and procured him to pass it. they were tried together and found guilty generally, and Malone and George submitted to the sentence pronounced, but Cheek appealed to this Court. the bill of exceptions states the case to the effect following:
One Seymore was produced as a witness on the part of the State, and swore that he kept a shop in which he retailed spirits on a high road in Chatham leading to Fayetteville, and that in the evening of a day in March, 1850, the prosecutor, Davidson, with one Stout, stopped for the night, with their wagons, on the road about 250 yards from his house; that the same evening the three prisoners came in company to his house, and said they had been working in the employment of one McCullock [McCulloch], a contractor engaged in the improvement of Deep River under the Navigation Company, and they asked for some liquor and to stay all night; that the witness got the liquor for them, when one of the company said they had no small change, and George, after holding a conversation with the other two in a low tone at the door, came to the witness and offered him a $20 bill of the Bank of Georgetown, which he refused to take, telling George that he was (116) not a judge of South Carolina bank notes, but he did not think that was good; and that thereupon George went back to the other prisoners and soon returned to him with a piece of silver change, with which he paid for the liquor, and the three drank it between them; that they soon got some more spirits, for which they gave him a knife; and that they retired soon afterwards to the room in which they were to sleep; that the prisoner Cheek was then drunk, and soon fell asleep on the bed, and Malone and George left the house together; and after some absence they returned and awoke Cheek and held a conversation with him in a whisper, and then Cheek got up and went away with George, and they did not return. This witness further stated that Malone and George claimed the note, and that he did not know that Cheek saw it.
Davidson deposed that after he and Stout had encamped, as before mentioned, the prisoner George came to the camp and said he was free, and named John George, and he soon proposed to buy a watch, which he saw the witness wearing, and that he refused to trade with the prisoner because he was a negro; that George then said he would go and get his young boss to make a trade, and he went away, but in a short time returned with the prisoner Malone, who said his name was James Johnson, and proposed to buy the watch; that they bargained for the watch at $13, and Malone offered in payment the note of the Bank of Georgetown for $20, set forth in the indictment, saying that he and George were both interested in it; and upon being asked whether it was good, he said it was, and that they had received it from McCulloch, the contractor on Deep River, where they had been at work; and thereupon the witness delivered the watch and received the note; that the witness paid Malone one dollar, but could not make (117) change for the other six, and it was agreed that he should leave that sum next day with a man in Haywood, and Malone and George then went away; that in about half an hour the prisoner Cheek (who, like the other two, was unknown to the witness) came to the camp with George, and had the watch with him, and said his name was Brooks, and that he had advanced the money to Malone for the $6, which the witness owed him, and that, as the witness was a stranger, he would take $5, if he would pay it at that time; and the witness borrowed $6 from Stout and paid that sum to Cheek, who then went away with George; that Cheek did not see the $20 note in his possession, nor did he claim an interest in it.
One Harris deposed that about an hour before daybreak the next morning Cheek and George came to his house, which was in the same neighborhood, and stated that they were on their way from the Deep River works and had lost their road; that Cheek was then drunk and said his name was Brooks, and that he was the son of one Thomas Brooks.
One McCulloch deposed that he was a superintendent for the contractors at Buckhorn Falls, on Deep River, and paid all the money expended there; that the prisoners worked under him in February or March, 1850, and that he paid to each of the white men $3, and to the negro $1; and that he did not let either of them have a $20 note. the witness was then asked if he kept an account of his expenditures, and had refreshed his memory by referring to his books; and he replied that he kept books, and had refreshed his memory by referring to them. thereupon counsel for the prisoners objected to the competency of his testimony; but the court received it.
On the part of the State there was then offered a copy of the (118) statute of South Carolina incorporating the Bank of Georgetown, certified to be a copy by William Hill, Esq., the Secretary of State, with a certificate by William A. Graham, Esq., as Governor of this State, that William Hill, who gave the certificate, was at that time Secretary of State. Counsel for the prisoners objected to it because the seal of the State was not attached to the certificate of the Secretary, but to that of the Governor, and because the certificate of the Secretary was dated 4 January, 1848, and that of the Governor the 3d day of that month, and also because the certificate of the Governor in 1848 was insufficient, and that it should have been that of the Governor at the time of the trial. But the court admitted the evidence.
Mr. Dewey was then offered on the part of the State, and he deposed that he was a clerk in the Bank of the State at Raleigh and had been for four years; that his duty was to assist in keeping the books, but that when large sums were received or sent away he assisted the teller in counting, and had frequently handled bills of the Bank of Georgetown in South Carolina, and had received and sent them off, and had never had one returned as counterfeit nor seen one that was counterfeit; and that he thought he was a perfect judge of good and counterfeit money. The witness was then asked whether he thought the bill then shown to him — being that described in the indictment — was good or bad; and counsel for the prisoner objected to his answering the question. But the court allowed him to answer; and he started that it was counterfeit, and that the names of the president and cashier were not written by them, but were printed from an engraving, and that in other respects mentioned by him it was different from a genuine note.
Counsel for the prisoner Cheek prayed the court to instruct (119) the jury that he could not be convicted on the second count, because the offense of the principal was a misdemeanor and did not admit of accessories, and that there was no evidence tending to show him to be guilty on the first count as principal in the second degree. the court refused to give the instruction prayed, and informed the jury that if they believed the prisoner Cheek aided and assisted the other two prisoners in passing the counterfeit bill to Davidson by participating in their plans and counseling and advising them to that end, or assured them, before the passing of the bill, that he would be at hand to extricate them from detection or difficulty, then he would be guilty as principal, though not actually present when the note was passed.
It is objected that McCulloch ought not to have been allowed to speak of anything on which his memory had been refreshed by looking at his books, without producing the book on the trial. But the rule seems to be otherwise. As the book was written by the witness himself, and was not in itself evidence, and the witness was obliged, after seeing it, to speak from his remembrance of the facts, it could serve no purpose to compel him to bring his book to court. At most, the absence of it could only affect the confidence the jury might yield to his statement, as it might not be as great as if the refreshing of his memory accompanied the giving of his testimony. It could not take away his competency nor render it improper for him to state to the jury that he had refreshed his memory by referring to his original entries, though not then present. Kensington v. Inglis, 8 East, 273. Indeed, it (120) is obvious that, as to the essential point of his testimony, that he did not pass a $20 note to either of the prisoners, he was deposing from his unassisted memory, since that is a particular fact on which no information could be expected from the book.
The transcript of the law of South Carolina was properly received. S. v. Jackson, 13 N.C. 563, is in point against the objection respecting the seal of the State. A transcript once duly certified is evidence at all times of the existence of the statute and its being in force according to its terms, unless a repeal be shown. the difference in the dates of the Governor's and Secretary's certificates is evidently a mere mistake, and cannot affect the competency of the document, because it follows necessarily from the Governor's certificate that, at the time he gave it, Mr. Hill had given his. the wrong dating of the one or the other is therefore not material.
Then as to Mr. Dewey's evidence, the rule is not restricted to cashiers and tellers of banks, but it admits merchants, brokers, and others who habitually receive and pass the notes of a bank for a long course of time, so as to become thoroughly acquainted with them and able to judge between a true and counterfeit bill, and have that knowledge tested, among other means, by the fact that no bill passed by the witness has been returned, though there has been ample time for it, if any of them were not genuine. S. v. Candler, 10 N.C. 393, and S. v. Harris, 27 N.C. 287, establish that as the general rule; and the present case is so plain that there could be no mistake, since the signatures to the note, purporting to be those of the president and cashier, were not written, but printed.
(121) It was lastly contended on the merits that the prisoner Cheek ought not to have been convicted, because he was in fact drunk and asleep, at the distance of 250 yards, when the other two passed the note, and there was no evidence of his preconcert with them to pass it; and hence that he was not guilty as principal, and could not, in law, be guilty as accessory before the fact. It is true, there are no accessories in inferior offenses. But it does not follow that procurers and aiders in such cases are not guilty at all. On the contrary, because they are not accessories, the law holds them to be principals. Some observations fell from Henderson, J., arguendo, in S. v. Good, 8 N.C. 463, which seem the other way. He may have been led hastily to express himself inaccurately, by not distinguishing between the case of accessories before the fact and the one then before the Court, which was whether there could be an accessory after the fact by receiving stolen goods of less value than twelve pence. This is more probable because, a few years afterwards, in S. v. Barden, 12 N.C. 518, that eminent judge laid down the law explicitly to the contrary, when it was directly to the point before the Court; and in so doing he was unquestionably right, according to the text writers and adjudged cases. For example, in Rex v. Jackson one hired some men to beat another, and they did it in his absence, and then he was indicted for the battery, as having been committed by himself, and convicted and heavily punished; and Hawkins, book 2, ch. 29, sec. 2, lays it down that whatever will make a man an accessory before the fact in felony will make him a principal in trespass and other misdemeanors, as in battery, forgery at common law, and others. Whence, he says, it follows that, being in judgment of law a principal offender, he may be tried and found guilty before any trial of the person who actually did the fact. Mr. East lays down the same doctrine as to forgery at common law, because it was but a misdemeanor. 2 East, pages 6, 973. In effect, then, both of the counts in this indictment (122) charge the prisoner as a principal, for the one charges directly that all three passed the note, and the other that one of them passed it and the other two procured him to pass it. the question then is, whether there was evidence to be left to the jury that the note was passed by Malone or George at the instigation of Cheek or by preconcert with him. His Honor thought there was, and this Court is of the same opinion. The three persons formed one party, and appeared to be acting on secret consultations with each other, and all the little they had seemed to be in common. there was much falsehood among them, in representing that the note came from a responsible person and in acting under false names. Those circumstances and others render it probable that all of them intended beforehand to pass the counterfeit note on joint account to the first person who would take it, and that if they could not get it off on Seymore, they would try it on the wagoners encamped near at hand, and that it was in fact passed in execution of that plan. For why should all three of them have been whispering together just before the note was offered to Seymore? And why did Malone and George leave Seymore's house after having once retired for the night, unless for the purpose of imposing on the men with the wagon? Now, they had no opportunity of knowing that those men were encamped at the road which Cheek did not also have; and then their secret communication to him on their return, and his quick apprehension of what they had done, evidenced by his readiness to enter at once in a feigned name on the completion of that part of the business which they had left unfinished, and, after having done so, his departure with George in a different direction under still another name, are circumstances from which an inference may be deduced that in reality there was a conspiracy between the three to pass the (123) note to Seymore or Davidson, and that each of them played his part in execution of it and on joint account. Those subsequent acts of Cheek do not of themselves constitute the offense; but in connection with the falsehoods uttered by them all, and the other previous parts of the transaction, they reflect back on the actions and motives of the three from the beginning, and were fit to be considered by the jury, and indeed raise as strong a presumption against this prisoner as may be expected in cases of the kind. the Court is, therefore, of opinion that there is
PER CURIAM. No error.
Cited: Yates v. Yates, 76 N.C. 149; Murphy v. Harper, 84 N.C. 195; Davenport v. McKee, 94 N.C. 330.