
    
      Elisha Harris ads. The State.
    
    1. A CJifrffiit Judge having, in his capacity of a magistrate, a supervisory control over the public justice of the country, has a right to order a criminal prosecution for a criminal offence, coming within his official cognizance, and for that purpose, to have detained and impounded any fwper upon which the prosecution may be founded. When a paper of that character has been used, and is in the possession of the court, it ceases to be under the exclusive control and confidential keeping of counsel.
    
      2. Where a suit was by way of summary process, in which a receipt offered in evidence had been detained by the presiding Judge, and ordered to be placed in the hands of the Solicitor of the circuit for the purpose of being made the subject of a criminal prosecution, such process with its official insignia, is both competent and sufficient evidence on the trial of the indictment; to shew that a suit had been pending in court. And whether. the plaintiffs in the process were partners or not, when the fraud was attempted to be committed, was a question for the jury.
    
      Before Butler, J. Union, Spring Term, 1844.
    The defendant was indicted, at common law, for the forgery of a receipt, of which the following is a copy.
    «McCLURE & WILSON, vs. ELISHA HARRIS.
    Received of Elisha Harris, in part of this case, thirty dollars, February 21, 1843. McCLURE & WILSON.”
    The charge in the indictment was, that the date 21, had been 27, and had been changed, with the fraudulent purpose of defeating an action which the plaintiff had commenced against the defendant, in sumpro. on a note for $27. The process had been issued on the 24th. John M’Clure swore that he put the note for $27, dated 14th February; 1842, with interest from the 1st day of the preceding January, into the hands of Col. Dawkins, for collection, on the 23d of February; and Mr. Clinton Wilson swore, that defendant came to him and paid him $30, on the 27th of the same month, and that he signed the above receipt. That when he signed it, it had the date of 27, and both from its appearance, and circumstances to which he referred, he was satisfied the date had been changed. Upon the trial of the sum pro. at the last term, Judge O’Neall ordered the receipt, which was offered in evidence on the part of the defendant, to be placed in the hands of the solicitor, for the purpose of being made the subject of a criminal prosecution. Thomson & Bowers appeared for the defendant, and, as Mr. Thomson said on the trial, objected to the paper being taken out of their possession, as it had been given to them as attornies; but notwithstanding this objection at the time, the paper was taken from him and delivered to Mr. Dawkins, the solicitor, who prepared this bill, and sent out Mr. Bowers before the grand jury as a witness against defendant.
    Upon this statement of facts, Mr. Thomson, for Thomson & Bowers, moved to quash the indictment, on the ground that it had been found upon evidence improperly obtained. The presiding Judge overruled the motion, and the case proceeded.
    The original process issued against the defendant, in the name of McClure & Wilson, was offered in evidence, to shew that a case had been pending in court, in which the above receipt was introduced as evidence. The court refused to let the decree of Judge O’Neall be read, as his conclusions as to the character of the paper alleged to have been altered, should not affect the decision of the jury on this indictment. But the fact that he had had judicial cognizance of the case, was allowed to be proved, by shewing that his name was to a judgment on the process. Upon the above state of facts, the case was submitted to the jury, and they found the defendant guilty.
    The defendant appealed, in this case, and moved the Court of Appeals for a new trial, on the following grounds.
    1. Because the paper on which the prosecution was founded, was in the possession of the defendant’s counsel after it had been used in court, and the Judge who then presided, had not the power, by law, to order and direct the same to be handed over to the solicitor, and that the paper was, therefore, illegal and incompetent to go before either the grand or petit jury.
    2. Because there was no legal proof of a suit pending, in the name of McClure & Wilson, as alleged in the judgment, as the journals of the court were not produced, which was indispensible.
    3. Because there was no proof as to the existence of the firm of McClure & Wilson, which was set out in the indictment.
    
      Thomson & Boioers, defendant’s attorneys.
    
      Daiokins, Solicitor, contra.
   Curia, per

Butler, J.

It might be made a question, whether the defendant had, on the circuit, or has now, any right to avail himself of any advantage growing out of his first ground of appeal. But as it was allowed to be discussed in the argument, it may not be amiss to express the judgment of the court upon it.

I think it never has been seriously contended, but that a Circuit Judge, having, in his capacity of a magistrate, a supervisory control over the public justice of the country, has a right to order a prosecution for a criminal offence coming within his official cognizance, and for that purpose, to have detained and impounded any paper upon \vhich the prosecution may be founded. When a paper of that character has been used, and is in the possession of the •court, it ceases to be under the exclusive control and confidential keeping of counsel. If it were otherwise, it would be in the power of a party to escape from the detection of his guilt, by interposing counsel between himself and the court. And this view is not in conflict with the case of the King vs. Dixon, 3 Bur. 1687. In that case, it appeared that one Peach, Dixon’s client, had produced and insisted on certain vouchers, before a Master in Chancery, and had subsequently delivered them over to his attorney, in confidence, for his advice and direction. It was held that the attorney, having received from his client these papers in a confidential communication, was not bound to produce them, under a subpoena duces tecum, in order that a prosecution for forgery might be founded on them. The note of the reporter explains the reason of the decision. These were not papers that had been detained or impounded by the Court of Chancery, but remained in Mr. Dixon’s hands, as papers belonging to his client. When Judge O’Neall, (if in fact he made such an order) directed the receipt, in the case before the court, to be detained and delivered over to the solicitor, it was no longer in the confidential possession of defendant’s counsel, but was a paper entirely under the control of the court; his order, therefore, so far as it regarded this paper, was both competent and proper.

The 2d ground of appeal presents as little difficulty. The original process, with its official insignia, was both competent and sufficient evidence to shew that a suit had been pending in court.

As to the 3d ground, it may be remarked that both McClure and Wilson were sworn on the trial, and from the circumstances and facts deposed to by them, their relation as partners might well have been inferred by the jury. Whether they were partners or not, at the time the intended fraud was attempted to be committed, was a fact which was submitted to the jury, and upon which they have passed by the finding of their verdict. Motion refused.

Richardson, O’Neall, Evans, Wardlaw, and Frost, JJ. concurred.  