
    *William R. Finn v. The Commonwealth.
    November, 1827.
    Criminal Law — Confession—What Admissible as — Case at Bar. — If a prisoner, in speaking of the testimony of a witness who had testified against him, says, "that what C. said was true as far as he went, but that he did not say all, or enough;” this is not admissible as a confession of the prisoner; nor does it lay any foundation for proving to the jury what C. did swear to.
    Same — Evidence—Witness Dead — Testimony on Former Trial — Admissibility.—Although, in a civil action, proof may be given of what a witness, who is since dead, did swear to on a former trial between the same parties, and on the same issue, yet such evidence is inadmissible in a criminal prosecution. And if the witness has only removed beyond the jurisdiction of the country, such proof is certainly not admissible In a Criminal case.
    Secondary Evidence — What Must Be Shown. — If evidence be not prima facie admissible, b.ut may be rendered so by circumstances, the party who offers the evidence, ought to set forth the circumstances which render it admissible.
    Forgery — Scienter—Evidence.—In a prosecution for passing a forged note, knowing it to be forged, evidence, thatthe prisoner endeavored to engage a person to procure for him counterfeit money, that he enquired whether he had brought Mm any. and of declarations that he intended to cultivate the acquaintance of a counterfeiter, and intended to remove to a place near his residence, &c. is admissible as tending to prove the scienter.
    This was a Writ o£ Error to the judgment of the Superior Court of Law for Kanawha county, by which the plaintiff in error was sentenced to imprisonment in the Penitentiary for the term of ten years. The Indictment on which he was tried, contained three counts, of which the first two charged that he feloniously passed to one John Whittaker a forged bank note, of fifty dollars, of the Bank of the United States, well knowing the said'bank note to be forged: the first count charged the felony to have been committed with intent to injure and defraud the said John Whit-taker; the second count, with intent to injure the President, Directors and Company of the Bank of the United States. The third count charged him with “offering to pass and exchange” the forged note, with intent to injure and defraud the said Whit-taker. In each count, the tenor of the forged note was set out.
    During the trial, the prisoner excepted to certain opinions of the Court, and the Bill of Exceptions is as follows:
    “Be it remembered, that on the trial of the issue, the Attorney for the Commonwealth introduced a witness who *proved that he had, during the last winter, a conversation with the prisoner while he was confined in jail concerning this prosecution: that on the prisoner’s commencing this conversation, the witness reminded him that he, the witness, was recognized to appear and give evidence on his trial, and should have to detail any communications which he might make: the prisoner replied that he knew it, and wished him to do so; that he meant to explain the matter to him. The prisoner then observed, that what a certain Mr. Candler swore to at the Called Court, was strictly true, as far as he went, but that he had not told all, or enough, and as the prisoner was in the act of speaking farther as to Candler’s testimony, the witness was called to the opposite side of the room, and left the prisoner with the intention of returning to him, and hearing the further remarks which he might make, and to which the one stated seemed to be introductory : that shortly afterwards, other persons came into the room, and a servant with food for the prisoners, when the witness left the apartment without giving the prisoner an opportunity of renewing the conversation, and without recollecting at the moment the propriety of doing so, and would willingly have gone back after-wards and heard the residue of what the prisoner might have thought proper to have added, but concluded it would be of no service to him: that the prisoner did not attempt to recapitulate the testimony which Candler had given at the Called Court, but referred to it in the words above stated.
    The Attorney for the Commonwealth then offered to prove by other witnesses, what the said Candler had testified to before the Called Court, having first proved, that the said Candler, although summoned to attend at this term as a witness against the prisoner, has since left the Commonwealth, and admitted that he is now living, but beyond its jurisdiction: to the admission of proof of what Candler swore at the Called Court, the prisoner, by his Counsel, objected ; but the Court overruled the objection, *and permitted it to be proved, instructing the jury, that although this testimony was admissible, yet it was peculiarly proper for them to consider and decide upon the weight to which it was entitled, from the interruption of the conversation in which the prisoner had spoken of Candler’s evidence.
    The evidence given by Candler before the Called Court, as detailed by the witnesses, was in substance, as follows: that some time before the commencement of this prosecution, the prisoner proposed to Candler, that they should join in procuring and passing counterfeit money: that Red river and Big Sandy river, (as well as the witnesses recollect,) were spoken of, in connection with the procuring and passing the counterfeit money, but the witnesses did not recollect that the kind of money, whether coin or bank notes, was mentioned by Candler; but one of the witnesses understood, from his general recollection of Candler’s testimony, that coin was meant, rather than bank- notes. To the admission of this testimony, the prisoner, bj- his counsel, further objected, on the ground that it was irrelevant and impertinent to the issue; ljut the Court was of opinion, that it was admissible, as tending to prove the scienter, and permitted it to go to the jury, with instruction, that they were to consider it as before them on that part of the issue alone. The prisoner afterwards, in the progress of the cause, introduced a witness to prove that the day after the passing of the note, in the Indictment mentioned, by the prisoner to the said John Whittaker, and three or four days before the said Whittaker procured a warrant to be issued against the prisoner, the witness received an order from the prisoner on the said Whittaker, for a small sum in goods, and presented it to the said Whit-taker for payment; that while the "witness was in conversation with the said Whit-taker, the prisoner joined them, and in the conversation continuing between the three, .the said Whittaker observed, that he had sent the said bank note to town the day before, and that some said it was good, and some that *it was bad; but that he had no doubt but that it was good; the prisoner then observed to him not to pay the order to the witness until the note should be ascertained to be good; to which the said Whittaker replied, that he was not afraid of the note’s being bad, and that whether good or bad, the witness might have the amount of the order, and that if the prisoner would take the residue of what was coming to him, on account of the note, in goods, that he, Whittaker, would take the note at a venture; but that the prisoner refused to do so, saying that he must have a part of the balance in money. To this conversation going in evidence to the jury, the Attorney for the Commonwealth objected, the said Whittaker not being examined as a witness on the trial, but having left the Commonwealth some time before; which objection the Court sustained, being of opinion that it was competent for the prisoner to give in evidence the conversation which took place, at the time of passing the said note, as part of the res gesta, and to examine witnesses as to any other conversations of his, about which the Commonwealth had given evidence; but, that his conversations with the said Whittaker, or any other persons, not falling within these rules, were inadmissible, as evidence on his part.
    On closing the testimony on the part of the Commonwealth, the attorney prosecuting, announced as part of the evidence on his part, the warrant for apprehending the prisoner, in the following words and figures :
    “Kanawha County, to wit: Whereas, John Whittaker of Kanawha county, hath this day made oath before me, Van B. Reynolds, a Justice of the Peace for the county aforesaid, that, on the 17th day of August, 1826, at the county of Kanawha aforesaid, Jesse G. Ballard and William R. Finn, of said county, did feloniously pass in payment to him, the said John Whittaker, a certain false, forged and counterfeited bank note, partly printed and partly written, purporting to be a note of the Bank of the United States, of the denomination of fifty dollars, with ^'intention to defraud the said John Whittaker; they, the said Jesse G. Ballard and William R. Finn, then and there knowing the said note to be false, forged and counterfeit. These are, therefore, to command you to apprehend the said Jesse G. Ballard and William R. Finn, and to bring them before me, or some other Justice of the Peace for said county forthwith, to answer the premises, and further to be dealt with, according to law. Given under my hand and seal, this 23d of August, 1826.
    “Van B. Reynolds, (Seal.”)
    And when the jury were about to leave the bar, he offered to send it out as part of the evidence, to which one of the prisoner’s counsel objected, alleging that it was the first knowledge which he had of the paper being offered in evidence, and moved the Court to exclude it from the jury; but, the Court overruled this motion, and permitted the said paper to go to the jury, but accompanied it with the instruction, that it was no evidence of the'truth of any of the recitals which it contained, and could only be looked into for the purpose of ascertaining the period of commencing the prosecution, and the persons against whom it was commenced. On the offering of this warrant in evidence, the counsel for the prisoner admitted, that Jesse G. Ballard named therein, was the same man, who had been previously examined as a witness on the part of the prisoner.
    To sustain the issue on his part, the Attorney for the Commonwealth examined a witness in the course of the trial, who deposed, that the prisoner had, on two or three occasions within twelve months before the commencement of this prosecution, applied to the witness to procure for him counterfeit money from a person on Big Sandy river, who was reported to make it, but the witness did not recollect tbat„either bank notes or coin were particularly mentioned ; that on one of these occasions, when the witness had recently returned from that part of the country, and in which he resides, the prisoner enquired of him, if he had brought him any of the money, and on being told he had not, the *prisoner replied, he must go over himself, and spoke of obtaining employment in that quarter as a surveyor, and using it as a means of cultivating an acquaintance with the person reported to be engaged in counterfeiting, but that the witness had no knowledge of the prisoner’s ever going to that quarter of the country, or his being absent from Kanawha at any time since. To the admission of this evidence, the prisoner by his counsel also objected, but the Court, being of opinion that it was admissible as tending to prove the scienter, permitted it to go to the jury; to all of which opinions of the Court, the prisoner by his counsel excepts, and this his Bill of Exceptions is signed, sealed and reserved.
    The case was argued by Johnson, for the plaintiff in error, and the Attorney General, for the Commonwealth.
    
      
       Criminal Law — Confessions. —See monographic note on "Confessions” appended to Schwartz v. Com., 27 Gratt. 1026.
    
    
      
       Same — Evidence—Witness Dead — Testimony on Former Trial — Admissibility.—See principle cited on this subject in Brogy v. Com., 10 Gratt. 722, 732, 783, and foot-note; Carrico v. West Virginia Cent., etc., R. Co., 39 W. Va. 89, 19 S. E. Rep. 572.
    
    
      
       Forgery — Scienter—Evidence. — See monographic note on "Forgery and Counterfeiting” appended to Coleman v. Com., 25 Gratt. 865. The principal case is cited on the subject in Walker v. Com., 1 Leigh 578.
    
   BROCKENBROUGH, J.

delivered the opinion of the Court.

The plaintiff in error was indicted for feloniously passing to one Johm Whittaker, a counterfeit bank note,, purporting to be a note of the Bank of the United States. At the trial, certain exceptions were taken to the opinion of the Court, which will be noticed in their reg‘-ular order. Judgment having been rendered against him, he obtained a Writ of Error at the last term of this Court, and the question now is, whether the judgment shall be reversed or affirmed?

1. The first branch of the Bill of Exceptions sets forth, that the Attorney for the Commonwealth introduced a witness, who proved that he had, during the last winter, a conversation with the prisoner, while he was confined in jail, concerning the prosecution ; the witness warned the prisoner against making any communication, informing *him that he should be compelled to detail in evidence, whatever he communicated. The prisoner replied, that he knew it, and meant to explain the matter to him : the prisoner then said, “that what Mr. Candler swore at the Called Court, was strictly true, as far as he went, but that he had not told all, or enough.” An interruption of the conversation here took place, whilst the prisoner was in the act of speaking of Candler’s, testimony, nor was an opportunity again afforded him of renewing it. In this interrupted conversation, the prisoner did not attempt to recapitulate the testimony which Candler had given at the Called Court, but merely referred to it as before mentioned. The Attorney for the Commonwealth, then offered to prove by other witnesses, what Candler had testified before the Called Court, having first proved that Candler, though living, is beyond the jurisdiction of the Court, having left the Commonwealth soon after he was summoned to attend the Court as a witness. The prisoner objected to this evidence, but the Court admitted it, instructing the jury, however, that although the testimony was admissible, yet it was peculiarly proper for them to consider and decide on the weight to which it was entitled, from the interruption of the conversation in which the prisoner had spoken of Candler’s evidence. It seems to this Court, that there is a weight3' objection to the admission of the evidence which was introduced to prove what Candler had sworn to in . the Called Court. The Attorney for the Common wealth supposed that he had laid a foundation for the introduction of that evidence, in the interrupted conversation of the prisoner. The objection to the evidence is, that in reality the prisoner made no confession of guilt at all; the conversation was rather a declaration of his innocence, than a confession of guilt. Nor was it a confession that Candler’s evidence was true: he said that what Candler swore to was true, as far as he went, but he did not say all, or enough. If a witness has told the truth, but not the whole truth, his evidence is not true. The conversation, then, of *the prisoner, laid no foundation whatever for the introduction of the other evidence, and both should have been excluded from the consideration of the jury. A question, however, arises on this Bill of Exceptions, of a graver and more important character: it is, whether the evidence which Candler gave on the examination, can be admitted per se, and independently of the prisoner’s confession, Candler having removed from the Commonwealth. In a civil action, if a witness who has been examined in a former trial between the same parties, and on the same issue, is since dead, what he swore to on the former trial, may be given in evidence, for the evidence was given on oath ; and the party had an opportunity of cross-ex-aming him. Peake, 60; Phillips, 199. But we cannot find that the rule has ever been allowed in a criminal case; indeed, it is said to be expressly otherwise. Peake, 60, quoting Fenwicke’s Case, 4 St. Trials. Ñor can we find that the rule in civil cases extends to the admission of the evidence formerly given by a witness who has removed beyond the jurisdiction of the country; much less can it be admitted in a criminal case. We are all, therefore, of opinion, that there is error in the judgment of the Court, as set forth in the first part of the Bill of Exceptions.

2. Of the second exception, no notice need be taken, because it relates to the proof of what Candler had sworn to on the former occasion, and we have excluded it on another ground.

3. The third exception relates to evidence offered by the prisoner; but, as the Court is equally divided on its admissibility, it will not be noticed.

4. In the progress of the trial, the Attorney for the Commonwealth offered in evidence the warrant for the apprehension of the prisoner, and one Jesse G. Ballard, charged with this offence. The prisoner moved to exclude it, but the Court permitted it to go to the jury, accompanied with the instruction that it was no evidence of the truth of any of the recitals contained in it, and could only be looked x'into for the purpose of ascertaining the period of commencing the prosecution, and the persons against whom it was commenced. On offering the warrant in evidence, the prisoner’s counsel admitted, that the Jesse G. Ballard named therein, was the same person who had been examined as a witness for the prisoner.

As the warrant for apprehending the prisoner does not appear to be evidence of itself, it was certainly the duty of the attorney to shew the relevancy of it: if it was wanting for the purpose of shewing the date of the prosecution, it would have answered that purpose to have stated to the jury the date which appeared on the warrant, and that might have been stated by the counsel, or a witness; but, it was improper to give it in evidence for the purpose of shewing the persons against whom it was issued, without shewing that from some previous evidence, that fact became material in the cause; the rule being, that where evidence is not prima facie admissible, the circumstances which render it so must be set out.

S.In the course of the trial, the Attorney for the Commonwealth examined a witness, who deposed, that the prisoner had, on two or three occasions within twelve months before the commencement of the prosecution, applied to the witness to procure for him counterfeit- money from a person on Big Sandy river, who was reported to make it, but the witness did not recollect that either bank notes or coin were particularly mentioned; that on one of these occasions, when the witness had recently returned from that part of the country, in which he resides, the prisoner-enquired of him, if he had brought him any of the money, and on being told that he had not, the prisoner replied, that he must go over himself, and spoke of obtaining employment in that quarter as a surveyer, and using it as a means of cultivating an acquaintance with the person reported to be engaged in counterfeiting, but that the witness had no knowledge of the prisoner’s ever going to that quarter of the country, or his being absent from Kanawha *at any time since. The-prisoner objected to this evidence, but the Court admitted it as tending to; prove the scienter.

The passing a counterfeit note, may be of itself a perfectly innocent transaction f the guilt consists in passing it, knowing it to be counterfeit. If no other circumstances than those of the transaction itself are given in evidence, it would be impossible to ascertain whether it was passed with this guilty knowledge, or not. Hence Courts have been driven to the necessity in such cases, of admitting evidence of the conduct of the prisoner, so that from his conduct on one occasion, the jury may infer his knowledge on another. Thus, in Whiley & Haines’s Case, (2 Beach, 983,) on a charge of uttering forged notes, evidence was admitted to prove that they had uttered other forged notes, knowing them to be forged. So in Ball’s Case, it being proved that the prisoner had uttered counterfeit notes in June, 1807, proof was offered to shew that he had, in the March preceding, uttered another forged note, and that from December, 1806, various forged notes had been paid into bank endorsed with his hand-writing. In these cases, substantive felonies were allowed to be given in evidence, for the purpose of proving that he knew that the note he uttered was forged. Is not the evidence offered here, admissible on the same principle? The prisoner endeavoured to engage a person to procure for him counterfeit money; en-quired whether he had brought him any,, and declared that he intended to cultivate the acquaintance ox a counterfeiter, and for that purpose, intended to remove to a place near his residence. This evidence taken singly, it is true, may have but little weight; but, all the evidence in the cause is not given, and there may have been -other circumstances connected with it, which would manifestly prove the guilty knowledge. The evidence given is probably a link in the chain of evidence, and being so, it would be wrong to exclude it ■from the consideration of the jury, the object being to infer from his conduct and declarations, *his knowledge of this fact. On this ground-, a majority -of the Court is of opinion, that there was no error in admitting it.

But, the judgment is to be reversed for the errors contained in the first and fourth exceptions, and -a new trial awarded. 
      
       Absent, Dade and Semple, J.
     