
    * Commonwealth versus John Kinison.
    Upon an indictment for having m possession a counterfeit bank note, it is not sufficient for witnesses to swear to the identity of the note, unless it has been constantly in their possession, or they have put a private artificial mark upon it before parting with it
    The defendant was indicted for having in his possession a false, forged, and counterfeit note of the Vermont state bank, with intent to pass the same as true, he well knowing the same to be false, forged, and counterfeit, against the form of the statute in such case made and provided, and the peace and dignity of the commonwealth.
    Upon the general issue pleaded, he was tried, during this term, before Sedgwick, J., and was found guilty, subject to the opinion of the Court on the question proposed in the judge’s report, which follows.
    “ In this case, it appeared that the bill exhibited at the trial was out of the hands of Daniel Pecker, to whom it was passed, two or three weeks, during which time, it was in the hands of a justice of the peace, who might have been, but was not, produced upon the trial. Pecker and his wife swore positively -to the identity of the bill, on which there was no private or artificial mark, but there were three accidental ones. The conviction is right, if the testimony of the justice was not indispensable; otherwise there ought to be a new trial.”
    It having been agreed by the Solicitor-General and Story, of counsel for the prisoner, that the question of law arising on this report might be determined in any county, the opinion of the Court was delivered as follows, at the succeeding March term in Suffolk, by
   Parsons, C. J.

We have looked into this case, and on consideration are all of opinion that the verdict must be set aside, and a new trial granted.

It is an indispensable rule of law, that evidence of an inferior nature, which supposes evidence of a higher in existence, and which may be had, shall not be admitted.

In the present case, Pecker was an unexceptionable witness to prove that the defendant passed a bank note to him; but when he testified that the bank note he received had been out of his possession, and in the possession of the justice, whose testimony might have been had, it was irregular to admit him to testify to the identity of the note produced from his recollection * of [ * 647 ] accidental marks. The testimony of the justice would have been direct, and is of a superior nature.

If the witness present had, before he parted with the note, made any private artificial mark, which he recognized on producing the note, and to which he could positively swear, we think such testimony ought to have been admitted, as being of as high and satisfactory a nature as the justice’s testimony; because it could not be presumed that a fac simile of his private artificial mark would be imposed on another note by another person. But any accidental marks on this note might have happened to be on other notes.

In the case of Williams vs. The East India Company, the testimony of witnesses, from which a strong and satisfactory presumption arose, was rejected, because it appeared that there was a witness who might have been produced, and who could have testified directly to the fact,

The same objection lies to Pecker’s wife as lies to him, and a new trial must be granted. 
      
       3 East, 192.
     
      
      
         [Vide Commonwealth vs. James, 1 Pick. 381, 382. — Ed.]
     