Reports of Cases Argued and Determined in the Supreme Court of Judicature and in the Court for the Trial of Impeachments and Correction of Errors in the State of New-York Volume 4 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1859 Excerpt: ...and two persons are indicted jointly, they may be tried jointly or separately, at the discretion of the court. This is the settled practice, both here and in England, and no objection to it exists sufficient to outweigh the public convenience of the rule. 2. The next objection is to the competency of Butler as a witness. The claim which the bank might have had against him was released, and the interest, if any, which Butler had in supporting the charge of forgery, is supposed to arise from his being liable to Cooper, the nominal payee of the check. The ancient rule in England, that a witness, whose name was forged, was incompetent to prove the forgery on an indictment, because he was interested in the question, still prevails in their courts, and it was adopted by this court in the year 1794. The grounds or reasons of that decision are not before the public, and we therefore do not know them. It is probable that the court assumed the English rule as they found it then existing. But New-york, since that time, the question of interest in a witness has been investigated and defined with more precision, both in England The People and in this state. The rule now, in all such cases, and I beHowell. l'eve mav sav 'n almost a" criminal cases, except in the case of a forged instrument, is, that the witness is to be received, if he be not interested in the event of the suit, so that the verdict could be given in evidence in an action in which he was a party. The interest which the witness may have in the question put, is no longer the test. That degree of interest goes only to the credit of the witness. The exclusion of the witness, in the case of forgery, has therefore now become an anomaly in-the law of evidence, for it is certain that the conviction of t...