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#1 „_-, *warrant of distress has been attested, the attesting witness must 1''J be produced. Higgs v. Dixon, 2 Stark. 180, 3 E. C. L.
Proof of private documents—attesting witness—when proof waived. Where the attesting witness is dead; Anon., 12 Mod. 607; or blind; Wood v. Drury, 1 Lord Raym. 734; Pedley v. Paige, 1 Moo. & Rob. 258; or insane; Currie v. Child, 3 Campb. 283 ; or infamous (but now see the 6 & 7 Vict. c. 85, s. 1); Jones v. Mason, 2 Str. 833; or under sentence of death, see ante, p. 124; or absent in a foreign country, or not amenable to the process of the superior courts; Prince v. Blackburn, 2 East. 252; as in Ireland; Hodnett v. Foreman, 1 Stark. 90; or where he cannot be found, after diligent inquiry;
Teall t'. Van Wyck, 10 Barb. 376. When there is other proof that the witness is dead or absent, it is unnecessary to take out a subpoena. Clark v. Boyd, 2 O. 59. In the absence of the instrumental witness, or of proof of the handwriting of the witnesses and parties, the next best evidence is the acknowledgment of the parties. Ringwood v. Bethlehem, 1 Green, 221. The confession of a party that he executed a paper has been held not to be secondary to proof of handwriting. Conrad v. Farrow, 5 \V. 536. In order to prove an attested deed, the subscribing witness must be called, if within the reach of process and in a situation to be sworn ; and neither the testimony of the party to the instrument, nor his admissions out of court, can be received as a substitute. Hollenback v. Fleming, 6 Hill, 303. If a subscribing witness to a bond be interested at the time of attestation, and dead at the time of the trial, evidence of his handwriting is not admissible to prove the execution of the bond. Amherst Bank r. Boot, 2 Mete. 522. Where it appeared that the subscribing witness to a bond had been clerk of the county court of a large, populous, and wealthy county, and had been dead only twenty-five years, it was held not to be sufficient for admitting testimony of the obligor's handwriting, to show, by one witness only, that he did not know the subscribing witness's handwriting, and did not know of any person who had such knowledge. McKinder ». Littlejohn, 1 Ired., Law, 66. Where the subscribing witnesses to an instrument reside without the limits of the State, it is not necessary to produce their testimony. Emery v. Twombly, 17 Me. 65. If the attesting witness to a promissory note be called, and does not prove the handwriting of the name to be his, it is competent to prove it by the testimony of other witnesses. Quimby r. Buzzle, 16 Me. 470. Where an instrument is read in evidence on proof merely of the handwriting of a deceased attesting witness, the adverse party may give evidence of a witness's bad character at the time of attesting, or show his subsequent declarations that the instrument was a forgery. So, the entries of a clerk, when resorted to as a substitute for his oath, may be impeached by proof of his bad character for honesty. Losee r. Losee, 2 Hill, 609. The case of Jackson v. Phillips, 9 Cow. 94, so far as it holds that one who affixes his name to an instrument after its execution, without being requested, is a good subscribing witness, disapproved. Hollenback v. Fleming, 6 Hill, 303. Proof of the handwriting of deceased subscribing witness to a deed is not sufficient evidence of its execution to entitle it to be read to the jury, where the deed on its face excites suspicion of fraud. Brown p. Kimball, 25 Wend. 259. It is not necessary to call more than one of the witnesses to an instrument of writins, in order to prove its execution. McAdams v. Stilwell, 13 Pa. St 90. If a subscribing witness to an instrument merely makes his mark, instead of writing his name, the instrument is to be proved by adducing proof of the handwriting of the party executing it. Watts r. Kilburn, 7 Ga. 356. The fact that a subscribing witness had gone to sea. and had not been heard from for four years, is sufficient to let in secondary evidence of his handwriting; but a temporary absence from the State is not enough. Gaither v. Martin, 3 Md. 146. When the subscribing witnesses to a writing reside out of the State, it is not necessary to produce them. Frazier v. "Moore, 11 Tex. 755. A subscribing witness to a written instrument must be produced, if he can be had, such being the best evidence of its execution. Foye t>. Leighton, 4 Fost. 29. Subscribing witnesses must be called or their absence accounted for. Story v. Lovett, 1 E. D. <S. 153 ; Tinnen i>. Price, 31 Miss. 422; MeGowan v. Laughlan, 12 La. An. 242; Powell's Heirs r. Hendricks, 3 CaL 427.
Cunliffe v. Sefton, 2 East, 183; in all these cases evidence of the attesting witness's handwriting is admi&sible. Some evidence must be given in these cases of the identity of the executing party; and although there are cases to the contrary, it is now held that mere identity of nam? is not sufficient proof of the identity of the party. Whitelock v. Musgrave, 1 Crom. & Mee. 511; 3 Tyr. 541. The illness of a witness, although he lies without hope of recovery, is no sufficient ground for letting in evidence of his handwriting. Harrison v. Blades, 3 Campb. 457. Where the name of a fictitious witness is inserted; Fasset v. Brown, Peake, Ev. 96; or where the attesting witness denies all knowledge of the execution; Talbot v. Hodgson, 7 Taunt. 251, 2 E. C. L.; Fitzgerald v. Elsee, 2 Campb. 635; evidence of the handwriting of the party is sufficient proof of its execution. So where an attesting witness subscribes his name without the knowledge or consent of the parties. M'Craw v. Gentry, 3 Campb. 232. Where there are two attesting witnesses, and one of them cannot be produced, being dead, etc., it is not sufficient to prove his handwriting, but the other witness must be called. Cunlifi°e v. Sefton, 2 East, 183; M'Craw v. Gentry, 3 Campb. 232. But if neither can be produced, proof of the handwriting of one only is sufficient. Adam v. Kerr, 1 B. & P. 360. It is not necessary now to call the attesting witness in the case of any instrument to the validity of which attestation is not necessary. 28 Vict. c. 18, s. 7.
Proof of private documents—evidence of handwriting. Where a party cannot sign his name, but makes his mark, that mark may be proved by a person who has seen him make the mark, and is acquainted with it. Per Tindel, C. J., hcesit. George v. Surrey, Moo. & M. 516. Where a witness had seen the party execute a bail-bond, but had never seen him write his name on any other occasion, and stated that the signature to the bond produced was like the handwriting which he saw subscribed, but that he had no belief on the subject, this was held to be evidence of the handwriting to go to the jury. Garrels v. Alexander, 4 Esp. 37. But it is otherwise where the witness has only seen the party write his name once, and then for the purpose of making the witness competent to give evidence in the suit. Stranger v. Searle, 1 Esp. 14.1 Where the witness stated that he had only seen the party upon one occasion sign his name to an instrument to which he was attesting witness, and that he was unable to form au opinion as to the handwriting, without inspecting that other instrument, his evidence was held inadmissible. Filliter v. Minchin, Mann. Index, 131. In another case, under similar circumstances, Dallas, J., allowed a witness to refresh his memory, by referring to *the original document, which he had formerly seen signed. r*i7« Burr v. Harper, Holt, N. P. C. 420. It is sufficient if the L Lin witness has seen the party write his surname only. Lewis v. Sapio, Moo. & Mai. 39; overruling Powell v. Ford, 2 Stark. 164, 3 E. C. L.
1 But sc>e contra, Beid v. State, 20 Ga. 681.
It is not essential to the proof of handwriting, that the witness should have seen the party write. There are various other modes in which he may become acquainted with the handwriting.1 Thus where a witness for the defendant stated that he had never seen the person in question write, but that his name was subscribed to an affidavit, which had been used by the plaintiff, and that he had examined that signature, so as to form an opinion which enabled him to say he believed the handwriting in question was genuine, this was held by Park, J., to be sufficient. Smith v. Sainsbury, 5 C. & P. 196, 24 E. C. L. So where letters are sent, directed to a particular person, and on particular business, and an answer is received in due course, a fair inference arises that the answer was sent by the person whose handwriting it purports to be. Per Lord Kenyon, Gary v. Pitt, Peake, Ev. 99. And in general, if a witness has received letters from the party in question, and has acted upon them, it is a sufficient ground for stating his belief as to the handwriting. Tharp v. Gilsburne, 2 C. & P. 21, 12 E. C. L. And the receipt of letters, although the witness has never done any act upon them, has been held sufficient. Doe v. Wallinger, Mann. Index, 131. Formerly, a document could not, in criminal cases, be proved by comparing the handwriting with other handwriting of the same party, admitted to be genuine.2 See Burr v.
1 Hammond's Case, 2 Greenl. 33; Eussell e. Coffin, 8 Pick. 143. As when the witness has received promissory notes which the party has paid. Johnson r. Deverne, 19 Johns. 134. See Sharp v. Sharp et al, 2 Leigh, 249. So the officer of a bank in the habit of paying the party's checks. Coffeys Case, 4 Rog. Rec. 52. A witness may testify from having seen the party write, from having carried on a correspondence with him, or from an acquaintance gained from having seen handwriting acknowledged or proved to be his. Page r. Hemans, 14 Me. 478. [State «>. Gay, 94 N. C. 814.] It must be shown that a witness who is called to prove the handwriting of a person, has had such means of knowledge as to furnish a reasonable presumption that he is qualified to form an opinion on the subject. Allen t*. State, 3 Humph. 367. [Haynie v. State, 2 Tex. App. 168; Heacock r. State, 13 Tex. App. 97.] It is not necessary to give positive proof of handwriting, in order to submit the instrument to the jury. A qualified expression of belief that it is in his handwriting is sufficient. Watson v. Brewster, 1 Barr, 381. As to a knowledge of handwriting derived from correspondence: McKonkey v. Gaylord, 1 Jones's Law, 94; Chaffee v. Taylor, 3 Allen, 598. Witnesses who had frequently received and paid out bank notes, and one of whom had once carried a large number of them to the bank, which were all paid, but who had never seen either the president or cashier write, were allowed to prove a forgery. Commonwealth v. Carey, 2 Pick. 47. A witness who had seen a party write but once, is competent to testify as to his handwriting. Bowman v. Sanborn, 5 Fost. 87. The prosecutor in a criminal case, while it was pending, procured the defendant to write in his presence, to become acquainted with his handwriting: held, that his testimony as to the defendant's writing, thus obtained, was admissible at the trial. Keid v. State, 120 Ga. 681. It is not competent, upon cross-examination of a witness called to imimgn the genuineness of a signature, to show him other papers signed by the same name, but irrelevant to the case, in order to test the accuracy of the witness. Armstrong r. Thurston, 11 Aid. 148. S. United States v. Chamberlain, 12 Blatchlord, 390.
1 In criminal cases: United States v. Craig, 4 Wash. C. C. 729; Hutchins's Case, 4 Rog. Rec. 119; Commonwealth v. Smith, 6 S. & R. 571; Penna. i\ McKee, Addison, 33, 35. In civil cases: Jackson v. Phillips, 9 Cow. 94 ; Root's Adm. r. Rile's Adm., 1 Leigh, 216; Martin v. Taylor, 1 Wash. C. C. 1; Pope v. Askew, 1 Ired. Law, 16. It is admissible, however, where it goes in corroboration of other evidence. McCorkle v. Binns, 5 Binn. 349; Farmer's Bank v. Whitehill, 10 S. & R. 110; Bank of Penna. v. Jacob's Adm., 1 P. & W. 161; Boyd's Adm. v. Wilson, Id. 211; Myers t>. Toscan, 3 N. 1 East, P. C. 257; R. v. Plumer, Kel. 109. Thus if a master assault another with malice prepense, and the servant, ignorant of his master's felonious design, take part with him, and kill the other, it is manslaughter in the servant, and murder in the master. 1 Hale, 466.
Where several persons are in company together, engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge or consent of the others, commits an offence, the others will not be involved in his guilt, unless the act done was in some manner in furtherance of the common intention. Several soldiers employed by the messenger of the secretary of state to assist in the apprehension of a person, unlawfully broke open the door of a house where the person was supposed to be. Having done so, some of the soldiers began to plunder, and stole some goods. The question was, whether this was felony at all. Holt, C. J., observing upon this case, says, that they were all engaged in an unlawful act is plain, for they could not justify the breaking a man's house without first making a demand. Yet all those who were not guilty of stealing were acquitted, notwithstanding their being engaged in an unlawful act of breaking the door; for this reason, because they knew not of any such intent, but it was a chance opportunity of stealing, whereupon some of them did lay hands. Anon., 1 Leach, 7 (n); 1 Russ. Cri. 162 (J), 5th ed. See also, R. v. White, R. & R. 99; R. v. Hawkins, 3 C. &. P. 392, 14 E. C. L., post. Three men went out into a field to shoot, and placed a target in a tree eight feet from the ground. They laid down on the ground, and each fired at it in turn. Their rifles were sighted to shoot 950 yards, and would probably be deadly at a mile. A boy in an apple-tree 393 yards off was killed by one of the shots; but it was ♦uncertain which of the prisoners had shot him. They were r*jgg all held to be guilty of manslaughter. Reg. v. Salmon, 6 Q. L B. D. 79; 50 L. J., M. C. 25. It is, perhaps, open to doubt that if only one had fired his rifle all would have been equally guilty. Lord Coleridge, C. J., said, "the death resulted from the action of the three," and Stephen, J., said, "they unite to fire at the spot in question."
Where several are present, aiding and abetting, and the punishment of principals in the first and second degree is the same, an indictment may lay the fact generally as being done by all; 2 Hawk. c. 25, s. 4; even, as in cases of rape, where from the nature of the offence only one can be a principal in the first degree. And as in almost every case the punishment of all principals is the same, this is the course that is usually followed.
It has been long settled that all those who are present, aiding and abetting when a felony is committed, are principals in the second degree, and may be arraigned and tried before the principal in the first degree has been found guilty; 2 Hale, 223; and may be convicted, though the party charged as principal in the first degree is acquitted. R. v. Taylor, 1 Leach, 360; Benson v. Offley, 2 Show. 510; 3 Mod. 121; R. v. Wallis, Salk. 334; R. v. Towl, R. & R. 314; 3 Price, 145; 2 Marsh. 465.
Accessories before the fact in felonies—bare permission—countermand. An accessory before the fact is denned by Lord Hale to be one who being absent at the time of the offence committed, does yet procure, counsel, command, or abet another to commit a felony.1 1 Hale, P. C. 615. The bare concealment of a felony to be committed, will not make the party concealing it an accessory before the fact 2 Hawk. c. 29, s. 23. So words amounting to a bare permission will not render a man an accessory, as if A. says he will kill J. S., and B. says, "you may do your pleasure for me." Hawk. P. C. b. 2, c. 29, s. 16. The procurement must be continuing; for if before the commission of the offence by the principal, the accessory countermands him, and yet the principal proceeds to the commission of the offence, he who commanded him will not be guilty as accessory. 1 Hale, P. C. 618. If the party was present when the offence was committed he is not an accessory. R. v. Gordon, 1 Leach, 515; 1 East, P. C. 352. In such case he should be indicted as a principal. R. v. Brown, 14 Cox, C. C. 144. Several persons may be convicted on a joint charge against them as accessories before the fact to a particular felony, though the only evidence against them is of separate acts done by each at separate times and places. R. v. Barber, 1 C. & K. 434,12 E. C. L.
Accessories before the fact in felonies—by the intervention of a third person. A person may render himself an accessory by the intervention of a third person, without any direct communication between himself and the principal. Thu3 if A. bids his servant to hire somebody to murder B., and furnishes him with money for that purpose, and the servant hires C, a person whom A. never saw or heard of, who commits the murder, A. is an accessory before the fact. Fost. 121; R. v. Macdaniel, 1 Lea. 44; Hawk. P. C. b. 2, c. 29, ss. 1, 11; 1 Russ. Cri., 5th ed., 166; R. v. Cooper, 5 C. & P. 535, 24 E. C. L.
Accessories before the fact in felonies—degree of incitement.
Upon the subject of the degree of incitement and the force of per*184l slias'on *use(l> no ^ la'd down. That it was sufficient to -I effectuate the evil purpose is proved by the result. On principle it seems that any degree of direct incitement with the actual intent to procure the consummation of the illegal object, is sufficient to constitute the guilt of the accessory; and therefore that it is unnecessary to show that the crime was effected in consequence of such incitement, and that it would be no defence to show that the offence would have been committed, although the incitement had never taken place.
1 When an offence is committed in one State by means of an innocent agent, the employer is guilty as a principal, though he did no act in that State, and was at the time the offence was committed in another. Adams v. The People, 1 Comst. 173. S.
Where an accessory before the fact is charged in an information with hiring a certain person named to commit an arson, the information is sustained by proof that he hired the person named and another to join in the burning. People r. Thompson. 37 Mich. 118.