2 U.S. 239 (1795)

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U.S. Supreme Court

RESPUBLICA v. ROSS, 2 U.S. 239 (1795)

2 U.S. 239 (Dall.)


Supreme Court of Pennsylvania

December Term, 1795

This was an indictment containing six Counts, which charged the defendant, in various forms, with forging and uttering a promissory note, dated the 27th of July 1795, purporting to be a note drawn by Joseph Heister in favor of John Smith, indorsed first by John Smith, and afterwards by Jacob Morgan; and with fraudulently conspiring with one Langford Herring to procure Jacob Morgan to indorse the note by means of a forged letter, purporting to be addressed by Joseph Heister, to Jacob Morgan. In the course of the trial, the following points of evidence were ruled by the Court.

I. The Attorney General (Ingersoll, who was assisted by Lewis and Heatly) offered Joseph Heister, the supposed drawer of the note, to prove that his signature was forged.

The Counsel for the defendant (Rawle, M. Levy, M'Kean and Dallas) objected on two grounds: 1st. That no man is a competent witness to impeach the validity of a negotiable instrument to which he has put his name. 1 T. Rep. 296. 3 Woodes. 303. 2nd. That the witness is disqualified on account of his interest in the case; and though the verdict here could not be given in evidence in a civil action, the Court and Jury would be sure to hear, of it. 2 Stra. 728, Leach. C.L. 9. 10. 50. 153. Bull. N. P. 288. 9. Leach. C. L. 162. 287. 10 Mod. 192. 3. 1 Stra. 595. 2 Stra. 1043. 1104.

Page 2 U.S. 239, 240

1229. Hardr. 331. 2 Hawk. P. C. 610. ch. 46. sect. 24. Leach. C. L. 25. Nor does his interest rest merely on the eventual responsibility of his signature; it is directly involved in the conviction of the defendant; since, by two acts of Assembly, he is intitled, upon that event, to a forfeiture; the first act inflicting a forfeiture of double the value, one half to go to the party wronged; and the second act inflicting a penalty of treble the value, to the use of the party wronged. Sec 1 Vol. Dall. Edit. p. 5. 64. The Counsel for the prosecution answered these objections, to the following effect. 1st. In the present case, the indictment alledges, that the name of Joseph Heister is not subscribed to the note; this is the fact in controversy; and he, who is the only positive witness that can be produced, is offered to disprove the signature. But, on the contrary, all the cases cited, proceed upon the ground, that the witness, confessedly, signed the instrument, which he is called upon to discredit. 2nd. Joseph Heister is not interested in the present case; for the record will not be evidence in a civil action, brought against him as drawer of the note. Nor is he interested under the acts of Assembly that have been cited, as the forfeitures imposed by those acts are abolished by the existing code of Penal Laws. Bull. N. P. 288. 4 Burr. 2251. 3 T. Rep. 36. 1 Vent. 49. The decisions in Pennsylvania have been uniform in the admission of such witnesses. 1 Dall. Rep. 110. 62. Rex. v. Chapman & Bates before the Recorder (Chew) in the Mayor's Court of Philadelphia 1772. Smith's case in the Quarter Sessions of Northampton County. Shepherd's case before the Recorder (Wilcocks) in the Mayor's Court.

M'Kean, Chief Justice. Two objections have been taken to the competency of Joseph Heister, as a witness on the present indictment: 1st. Because his name appears to be subscribed to the note, which his evidence is intended to prove a forgery; and 2nd. Because he is interested. The first objection has been well, and sufficiently, answered, by the remark, that whether the name of the witness is really subscribed to the note, or not, is the fact in controversy, which the Jury must decide. If the signature was allowed to be his, the objection would then, undoubtedly, be fatal. On the second objection, I do not think, that the witness is so interested, as to render him incompetent. The verdict in the present case could not be received in evidence upon the trial of a civil action; nor would the Court permit the counsel to refer to it. I confess, however, that early in life, I entertained a different opinion on this point, conceiving then, that the weight of the adjudged cases was adverse to the competency of the witness, though I thought it hard that the law should be so. My [2 U.S. 239, 241]

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