
    THE NATIONAL TRUST COMPANY, Plaintiff and Respondent, v. ANDREW L. ROBERTS and LYDIA J. ROBERTS, Impleaded with Others, Defendants and Appellants.
    I. CONSPIRACY TO DEFRAUD, CIVIL ACTION FOP.
    
    1. PROOF, ORDER OP.
    
      (a.) Pre-concert of Action.
    1. Not always necessary to first give evidence sufficient to establish prima facie pre-concert of action.
    1. Uttering forged paper. When the action is to recover damages by reason of a loan having been obtained on forged paper, and the defendants are charged with conspiring to manufacture and utter the paper, and to obtain the loan thereon, evidence of what occurred between the person making the loan and the defendant applying for it, of the declarations of that defendant made in and about obtaining the loan, of the means employed by that defendant to inspire confidence, and of the fraudulent character of such means, is admissible without first introducing evidence as to pre-concert of action.
    1. Process not served. This notwithstanding that such person, although named as a party defendant, has not been served with summons, and neither appears in, nor defends, the action.
    S. EVIDENCE, WHAT ADMISSIBLE.
    
      (a.) Financial condition of conspirators.
    1. Where money alleged to have been obtained from the plaintiff through the conspiracy in relation whereof the action is brought, has been attached in the action, evidence of the financial condition of the conspirators while the scheme of the conspiracy was in progress, and when it was carried into effect, is admissible.
    
    II. WITNESS, INOOMPETENOY OF.
    1. Infamous crime, conviction of in another State or foreign country.
    
      (a.) Does not render him incompetent as a witness in this State.
    
    
      Before Curtis, Ch. J., and Speir, J.
    
      Decided January 2, 1877.
    This action was brought by the plaintiffs, a corporation under the laws of the State of ¡New York, against the defendants, to recover the sum of $80,000, and interest, which snm was advanced by the plaintiffs upon forty-two forged bonds of the Buffalo, ¡New York & Erie ¡Railroad Company, on July 5, 1873.
    The loan was made to the defendant, Charles Ralston, who was not served with process, he having run away as soon as he obtained the money from the plaintiffs. The plaintiffs claim that the defendants conspired together to get up and put upon the market these forged bonds, and to divide the moneys obtained among them—that a large amount of money was obtained upon bonds similar to those upon which the plaintiffs made the loan, and at about the . same time and from various parties.
    The defendants, Andrew L. Roberts and Valentine Gleason, answered separately. Lydia J. Roberts, Horace S. Corp and Amelia A. Gleason, each put in separate answers. All the answers contained a general denial of the allegations in the complaint.
    The jury, under the charge of -the judge, rendered a verdict for the sum of $33,685.50.
    Arnold, Elliott & White, attorneys, and Richard C. Elliott, of counsel, for respondents, on the points discussed by the court, urged:
    I. The testimony of Fontaine S. Pettis, taken under commission in Massachusetts, was properly admitted. 1. Pettis, at the time his testimony was taken, was serving out his term of imprisonment for the crime of forgery; he was tried and convicted in Massachusetts. Defendants objected to his evidence being received, upon the ground that the statutes of this State disqualify him from testifying. Our statute provides, “No person sentenced upon a conviction for felony' shall be competent to testify in any cause, matter or proceeding, civil or criminal, unless he be pardoned by the governor, or by the legislature, except in the cases especially provided by- law; but no sentence upon a conviction for any offense other than a felony shall disqualify or render any person incompetent to be sworn or to testify in any cause, matter or proceeding, civil or criminal” (3 R. S. [Banks’ 5th Ed.] 988, § 33). 2. This provision of the statute is penal, and the same must be strictly construed. 3. The statute refers to a conviction within this State, and not to a foreign conviction ; that such was the intention is shown by the provisions of the statute relative to punishment upon. subsequent convictions (3 R. S. [Banks’ 5th Ed.] 985, §§ 9, 10). 4. The statute, section 9, provides for a longer term of imprisonment upon a subsequent conviction, and section 10 expressly provides that “every person who shall have been convicted in any of the United States, or in any district or territory thereof, or in any foreign country, of an offense, which if committed within this state would be punishable by the laws of this state by imprisonment in a state prison, shall upon conviction for any subsequent offense committed within this state, be subject to the punishment herein prescribed upon subsequent convictions in the same manner and to the same extent as if such first, conviction had taken place in a court in this State.” This section of the statute precedes the section first stated prohibiting the receipt of evidence upon a conviction, and only some three pages; if it had been the intention to disqualify upon a conviction out of the State, the statute would have so provided. Under the laws of the State of Massachusetts, where Pettis was convicted and was serving out his term of imprisonment, his testimony was competent. By the general statutes of Massachusetts of 1860, chap. 131, sec. 13: “No person shall be excluded by reason of conviction, &c., from giving evidence either in person or by deposition, &c. But conviction may be shown to affect credibility.” Again, under laws of Massachusetts, 1867 to 1872, chap. 393, sec. 1: “No person of sufficient understanding shall loe excluded from giving evidence as a witness in any proceeding civil or criminal in court or before a person having authority to receive evidence,” except in certain cases (and those cases do not exclude the evidence in question); and it is expressly provided that the testimony is not prohibited by reason of conviction, &e., as before stated and that the conviction could be shown to affect his credibility. In Commonwealth v. Green (1822), (17 Mass. 514), it was decided that the conviction of an infamous crime in a foreign country, or in any other of the United States, does not render the subject of such conviction an incompetent witness in courts of this State. And see Commonwealth v. Hall (4 Allen, 307). These decisions were before any special statute had been passed, and were decided on common law principles alone. In this State, in case of Cole v. Cole (50 How. Pr. 60), Westbrook, J., passes upon the question in that case ; a motion was made for a new trial, and upon such motion the affidavit of one Canter was presented. Canter was at the time serving out a term of imprisonment for nine years and six months in Pennsylvania, having been convicted of forgery, and the affidavit was made in prison. Justice Westbrook received the affidavit, holding that the conviction in another State would not probably render his evidence here inadmissible, and passes upon it in deciding the motion. Also see Greenleaf on Evidence, vol. 1 (Redfleld’s edition), 423, § 376. 6. Under the new revision of statutes of New York, section 832, it is provided that a conviction for crime does not exclude the witness, but the conviction may be proved for the purpose of affecting the weight of his testimony ; may prove it by his cross-examination ; witness must answer any questions relevant to that inquiry; and the party cross-examining is not concluded by witness’s answers (Code of Remedial Justice [Throop], ch. I-XIII. 275; Laws of 1876, § 832, p. 158, of the act relating to Courts, &c. See the able remarks of Mr. Throop in his notes to this section, at p. 163 of the notes).
    II. The exception taken to the admission in evidence of the transaction between Mr. Mangam, the president of the Trust Co., and Ralston ; the admission of the forged bonds ; the paper signed by Ralston ; the check given Ralston by Mr. Mangam, and a photograph of the man Ralston, identified by Mr. Mangam, is untenable; the evidence was all proper. Plaintiffs must commence their case somewhere, and the proper way to commence was, as they did, at the beginning ; the conspiracy had to be proved by separate and distinct acts of the parties. Every act and declaration of each one of the parties conspiring is admissible (1 Greenleaf on Evidence, § 3 [Redfield’s edition], vol. 3, §§ 89-97). And the order of proof was entirely discretionary with the judge.
    
      Ambrose H. Purdy, attorney and counsel, and A. Oakey Hall, counsel for appellant, on the points discussed by the court, urged:
    I. The exception to the testimony, respecting transactions of plaintiff with Ralston, and Ralston with Fellows, before any evidence had been given as to pre-concert of action, were well taken. 1. If the theory of the plaintiff’s case was that Ralston and the Roberts defendants were conspirators, the order of proof is imperative, and some evidence tending to show pre-concert of action must be given (1 Greenlf. Ev. [Redfield’s ed.]§ 111; Ormsby v. People, 53 N. Y. 473). And in all joint wrongs there must be proof of participation in the same wrongful acts (2 Hilliard on Torts, 457). 2. If the theory was that the Roberts were responsible for the uttering of the bonds, should they be proven to have participated in their forged manufacture, then the testimony about Ralston should have been confined to his acts in the uttering. But the court admitted the forged letter of introduction which he brought. This was utterly inadmissible, without proof towards a conspiracy of Roberts with Ralston, for it was an independent act of fraud not necessarily connected with the uttering, and tended to prejudice the jury. And equally inadmissible if, without proof of conspiracy, ifiaintiff sought to raise the presumption of law which the court charged respecting responsibility of Roberts for the results of Ralston’s uttering. Inadmissible because no connection for Roberts shown with the forged letter. This ruling would be making an original wrong-doer responsible for the means and method of accomplishing the wrong, when the law for necessary public protection sometimes made him merely responsible for the results, although no connection may have been established between the original wrongdoer and a subsequent one. The court carried the error very far, when it also ruled in under exception “all declarations of Ralston that formed part of the loan,” and all acts. The material question (assuming arguments, gratia, plaintiff’s theory and the correctness of Judge Sedgwick’s charge) should have been confined to the inquiry, viz. : did Ralston utter to plaintiff forged paper, and with what damage % All testimony beyond that tended to accumulate prejudice. Counsel for plaintiff, and the court, at this stage, seemed to have acted upon the idea that Ralston and Roberts were conspirators in the uttering. The same reasoning will assign similar error in the testimony of M. Fellows respecting forgery of the letter of introduction.
    
      II. The testimony of Pettis was incompetent. Upon the common law rule of evidence governing records, which prove convictions for felony, authorities differ. But before discussing the common law rule, let us refer to the statutory one of evidence upon this subject in New York. The 2 R. S. 701, § 23, says : “No person sentenced upon a conviction for felony shall be competent to testify in any cause, matter, or proceeding, civil or criminal, unless he be pardoned by the governor, or by the legislature,” &c. The court below construed this as if it read only persons sentenced for felony in this State, &c. But while the revisors were, of course, laying down a rule of evidence for our courts, yet their words “or by the legislature,” show that they intended, in ratifying a common law rule, to apply it universally to the principle of infamy; because, in our State, the legislative can have no power to pardon. And the phrase indicated that the rule referred to convictions in other States. Pardon power was restricted by the then constitution (1822) to the governor (art. 3, § 5), except in treason. However, by the common law, every felon while undergoing sentence sub modo extra legem positus, or while awaiting execution, was civiliter mortuus (Co. Lilt. 130a, 133a). And other provisions of the Revised Statutes, § 19, in regard to suspension of civil rights, were simply declaratory of the common law (see Revisor’s notes to the section). The main feature in the individual punishment of a felon, while undergoing sentence, was the appalling one that he had no legal status. In the language of Balcom, J., Freeman v. Frank (10 Abb. Pr. 371), “The rights and liabilities of a person civilly dead, are as entirely gone as though he were dead.” Equally so for extra legem positus when his rights are civilly suspended, although not absolutely dead. “The suspension of legal rights begins with sentence” (per Parker, J., Miller v. Finkle, 1 Park. 
      
      Cr. 377). This court, in O’Brien v. Hagan (1 Duer, 664), considered this suspension question so as to allow an abatement of suit when plaintiff’s civil rights were affected by incarceration for a term. The Massachusetts statutes confer upon its convicts the right to give testimony, but, of course, only in Massachusetts courts. Thereby showing that the common law rule of evidence had to be repealed or modified by statute. Thus Hew York, within its own courts, denies the right of testimony to all convicts whose testimony is therein offered, while Massachusetts confers the right upon convicts testifying in its courts. Pettis, by his commission-testimony, entered the superior court precisely, in law, as if plaintiff had brought him into the witness box, before judge and jury, from the Charles-town State prison in custody of a keeper, and by some arrangement with officials. All de bene esse testimony is only admissible when the oral examination of the witnesses under it would also have been admissible. The court and the counsel for plaintiff treated the question below, throughout, as if Pettis came on the stand as a freeman, while a record of former conviction, with sentence upon it fully served out, had been introduced to disqualify him. -It is to such kind of presentation of witnesses that every one of the decisions regarding foreign convictions attaches. But our present objection presents a more formidable front. Our objection went to the absolute incapacity of Pettis as a witness. He is a convict undergoing sentence. He is positus sub modo extra legem. He cannot make an affidavit. He cannot execute a paper. Perhaps (yet this is doubtful) he might in his own case and to protect his own rights (O’Brien v. Hagan, 1 Duer 664, see concluding words of opinion), but not as against rights of others. An authority (in 2 Stra. 1148) allowed the affidavits of convicts in personal exculpation. Pettis stood in court on the same footing as a lunatic. There was temporary civil incapacity. He possessed infamia juris (Phillips on Ev. chap. 3 of text) as distinguished from infamia facti (Ib.). The rule came to Saxon, from the Roman law: Publico judicio damnati non sunt ad testimonii fidem (Dig. 1, 22 tit. 5 de Testibus, art. 3, § 5). To “ credibility destroyed,” was added “ absolute incompetency.” It is the suffering of the punishment and its termination which restores the competency under some of the authorities (1 Phillips, ib.). This logically shows that daring punishment the incompetency is absolute. “It does not seem clear whether the restoration to competency by suffering a sentence has proceeded on the ground of incompetency being in the nature of punishment, or on the ground of a regenerating effect of punishment upon the moral feelings,” &c., &c., &c. (Note 18 of Cowen & Hill). Regarding the argument by respondents that this State will not take notice of records or punishments in other States, Cowen & Hill, note 13, says: “A person convicted of infamous crime in one State was held incompetent in another, within the provisions of the constitution of the United States, and of the act of Congress declaring the effect of the records of one State in every other.” Even this was as to effect of record of conviction on a witness who had served sentence. So that the testimony of Pettis would be objectionable on authority upon either ground. 1. His competency is suspended because undergoing punishment—or in other words, he is temporarily incapacitated. 2. Had he served out his punishment, even, the foreign record of his conviction ought, on principle, to have excluded. And, in reading the State Prison code of our own State (which is ch. 460 of the Laws of 1847), it is impossible not to observe how clearly there runs throughout it a recognition of the common law principle that civil disability during imprisonment is part of the punishment. Even when one convict committed an offense against another, the sufferer could not be a witness at common law, and sections 150 and 151 of that code were passed to make an exception to the ordinary incompetency. In Great Britain, by 6 & 7 Vic. c. 85, “incapacity from crime” has been removed. Yet this is only to the “discharged,” and not to the convict under sentence, as it would so appear from last edition of Best, section 141 (Morgan's Best on Ev. ed. 1875, vol. 1, p. 219). Perusal of the narrative given by Pettis must show to the court the soundness (upon grounds of protection to suitors and the community) of the incapacity rule which we have endeavored to show has been established as against a convict expiating his offense. Convicts are, in their feelings, while undergoing imprisonment, hostes humanis. They are embittered; and their sense of personal injury becomes superior to moral obligation or regard for individual rights. The answers of Pettis are, throughout his narrative, only abusive conclusions, and while the judicial or the logical mind might not be deceived by his answers, a juryman readily would be. Not only is the common law correct in excluding the testimony of a convict while within prison walls, because that his incapacity shall be part of his punishment, but because his disregard of social obligations apparent in his original infamy is heightened by his anger at the restraints. Especially is it so of Pettis, who claims to testify against those whom he regards as his enemies.
   By the Court.—Speir, J.

The first proposition advanced by the appellants is that assuming the theory of the plaintiff’s case to be that Ralston and Roberts and wife were conspirators, the order of proof was imperative, that some evidence tending to show pre-concert of action must be given.

In other words that the testimony showing that Ralston made the application to the plaintiffs for the loan of the money claimed in the complaint upon these bonds as security, and that to inspire confidence he presented a forged letter of introduction, and their evidence as to his declarations made in and about obtaining the loan was inadmissible without first giving evidence of the conspiracy, on the ground that it was an independent act of fraud not necessarily connected with the uttering of the bonds, and tending to prejudice the jury.

It is important to see what part Mr. Ralston took in this enterprise. He had an office at No 58 Broadway, room 11, in this city, and was or pretended to be a broker. He was unknown to the president of plaintiff’s company, with whom he conducted the negotiation, and presented a forged letter of introduction from George A. Fellows, who was a trustee in plaintiff’s company. In two or three days thereafter he obtained the loan on these spurious bonds. He who was known as Charles Ralston at 58 Broadway boarded at the house of a respectable family by the name of Thomas, at No. 257 West Fourteenth street in June, 1873, and had also resided with this family at No. 312 West Fourteenth street, and was known at both places by this family and other boarders as Walter Stewart. The defen- ' dants Mr. and Mrs. Gleason visited him there. Stewart (Ralston) left Mr. Thomas’s house after obtaining the money from the plaintiffs, in June, 1873, and that was the last they saw of him. Stewart’s conduct was such, while at Mr. Thomas’s house, that his real character was not known or suspected, and when they first heard of the report of his fraudulent transactions, Thomas called upon the defendant, Gleason, whom he knew only as a friend of Stewart, and was astonished when they denied knowing him, or that they had ever been at Thomas’s places of residence. Ralston’s bank book on the Fourth National Bank was' found in the box of defendant Valentine Grleason, at the New York Safe Deposit Company. This bank was the one in which Ralston kept his accounts and in which the plaintiff’s check was deposited by him. No explanation was offered on the trial of the facts disclosed by this testimony.

Looking at the complaint it would seem that the testimony of the president of the plaintiff’s company relating to the application for the loan, the security upon which it was made, the person negotiating it, and all the circumstances under which it was actually completed, would be the first step to be taken on the part of the prosecution. The action was for the recovery of this money obtained fraudulently upon fictitious and counterfeit bonds. The fact of the loan being made was the first thing to be established. The theory of the plaintiff’s case is not that the defendant Roberts was alone responsible for the uttering of the bonds. The fact clearly appears that Ralston was the defendant who first put them on the market. A man utters a false note or bond who gives it in payment or security knowing it to be false. This was what Ralston did. He presented a forged letter of introduction purporting to have been written by one of the trustees of the plaintiff’s company, and upon it was enabled to secure the confidence of the plaintiffs in obtaining the money and receiving these worthless bonds as security for the repayment. This testimony of the president therefore directly proved that Ralston took the first step in the uttering. Prior to the time of making this loan, it appears that Stewart (Ralston) was interviewed by Mrs. Pettis for the purpose of ascertaining whether the defendants, Roberts and Grleason, were going to dispose of these bonds. That he stated “they had changed their minds somewhat about sending them to Europe, or how they were to put them on the market.” He said, “Tell your husband he thought they were going to get a loan on them, and the balance they would send to some of the Western States.”

As a general rule a foundation must first be laid, by proof, sufficient in the opinion of the judge to establish prima fade the fact of conspiracy between the parties to be laid before the jury. The connection of the individuals in the unlawful enterprise being thus shown, every act and declaration of each member of the confederacy in pursuance of the original concerted plan, is in contemplation of law the act and declaration of them all (1 Greenl. Ev. [Redfield’s Ed.] § 111). The facts thus disclosed at the commencement of the trial on the examination of the first witness were more than prima facie, and did not rest even in the discretion of the court. It was not possible that the jury could be misled to infer itself of the fact of conspiracy, from the declaration of a stranger. Ralston was no stranger in the design and plan to defraud. He was the leading conspirator. This clearly takes the case out of the rule insisted upon by defendant’s counsel, that the obtaining the money by Ralston, and the introduction of the forged letter, were independent acts of fraud unconnected with the conspiracy of Roberts with Ralston.

It is claimed that the testimony of S. Pettis was improperly admitted.

At the time this testimony was taken under commission in Massachusetts, Pettis was serving oat his term of imprisonment for the crime of forgery. He was tried and convicted in Massachusetts, and the evidence was objected to upon the ground that the statute of this State disqualifies him from testifying.

By the general statutes of Massachusetts, “Ho person shall be excluded by reason of conviction, &c., from giving evidence either in person or by deposition, &c.”

Our statute provides, “Ho person sentenced upon a conviction for felony shall be competent to testify in any cause, matter or proceeding, civil or criminal, unless he be pardoned by the governor or the -legislature, except in the cases especially provided by law.”

The provision of the statute is penal, and must be strictly construed. The conviction referred to must be within this State. It is well settled that penal laws of one State do not extend into another. Personal disqualifications not arising from the positive law of the country, and especially such as are of a penal nature, are strictly territorial, and cannot be enforced in any country other than that in which they originated (Story on Conflict of Laws, §§ 91, 92, 620-625; 1 Greenl. on Ev. § 376). The case is decided in 17 Mass. 513, Commonwealth v. Green. The court say that the conviction of an infamous crime in a foreign country or in any other of the United States, does not render the subject of such conviction an incompetent witness in the courts of that State. This decision was made before any special statute was passed, and was made upon common law principles (see Cole v. Cole, 50 How. Pr. 60).

The objection to the 13th interrogatory, under which the 18th, 19th, 20th, 27th-35th interrogatories were answered, does not appear to be well taken. The question was certainly proper, as it asked for the knowledge which the witness had about the getting up of the said forged bonds. The 25th interrogatory, calling for the financial condition of the defendants or either of them, prior to the time said bonds were prepared and issued, was pertinent. The action was for recovery of this money obtained from the plaintiffs by the complicity and pre-concerted action of all the defendants, and which money had been attached. It was an important question, therefore, for the jury to know what means they had, if any, when they got the bonds up and issued them.

I fail to see any grounds for the nonsuit. The court did charge that the jury might sever in their verdiet: that -if they believed the evidence established participation by some of the defendants only, their verdict would be against them and in favor of the others. This was as far as the casé would warrant the judge in going. He told them they must discriminate in the case of Corp, Mrs. Gleason and Mrs. Roberts.

I have carefully looked into the several refusals to charge, and to the direct charge, and am of the opinion that all the objections specified by the defendant’s counsel on this appeal should be overruled.

It appears to me that the case has been fairly tried upon the evidence requisite to a correct result; and although some evidence of minor importance may have been erroneously admitted, it is manifest that its rejection could not have changed the result.

The judgment and order must be affirmed.

Curtis, Ch. J., concurred.  