
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN., 1811.
    The State v. Hope, Cashman, and Brown.
    
      A man who was swindled out of the possession of a slave, which he had, as an agent, to sell for another, was deemed by three judges to two, to he an incompetent witness, on an indictment against the swindler for stealing the slave, in order to prove that a bill of sale purporting to be signed by the owner of the slave, and'transferring the property and possession to the swindler, was a forgery, and not made by such witness.
    Motion for a new trial. The defendants were found guilty upon an indictment for stealing a female negro slav|e, before-, J., in Charleston. The case was this : A Mr. Durke of Spartanburg district, sent the negro in question, by his agent, named Couch, to sell in Charleston. Couch, an illiterate and simple man, falls in w*di Cashman, who offers to procure a chap, and carries him to Brown’s, a place where Hope and Brown were. Hope said his wife wished such a servant. The negro was sent to a house where Mrs. Hope was said to be with her sister. The negro not coming back, Couch grew uneasy, and insisted on going to look for her. The prisoners insisted on Couch’s drinking. They go in search of the negro ; Mrs. Hope cannot be found. They are told she is gone to a ball. Cashman refused to tell his name. Couch grows fearful of some attempt on his life, and makes his escape.
    The defendants are apprehended, and taken before a justice of peace. (Couch had been furnished by Durke with a bill of sale, on which ivas an indorsement, with a blank to be filled up with the purchaser’s name.) Hope, before the justice, insisted he had purchased the negro from Couch, and produced the bill of sale, with the blank filled up with his own name, and a receipt for the consideration money, as paid by him, signed Drury Couch.
    
    Couch declared, on oath, that the filled up blank, and the receipt, were forgeries. Jt was proved that Couch could not write ; and a paper was found in the handwriting of Cashman,. instructing the witness, Mitchell, how to swear to support these forgeries. Brown swore before the justice, that Hope bought and paid for the negro. Mitchell swore to the same effect. The wench was found at Mitchell’s. Hope was afterwards permitted to prove that Brown committed the forgeries.
    The defence rested chiefly on two grounds. I. That Couch was an inadmissible witness, being interested, as he was answerable to Durke for the negro, or the price received. 2. That the offence,' at the worst, w'as swindling, and not larceny.
    In support of the motion, White, Heath, Peyton, and Simono,
    argued, that Couch was interested, and, therefore, incompetent to prove the forgery. Cited 1 Lea. Cr. Ca. 10, 17&, 255, 350. 1 M’Nally’s Evid. 105,107, 137. 2 Haw. 46. Peake’s Evid. 112. *2. Swindling not larceny.
    The Attorney General, J. S. Richakdson, for the State,
    insisted, that it was a feloneous stealing and taking away, although the of-fence of swindling might be involved, and the lesser offence was-merged in the greater. The possession of the negro was obtained fraudulently, with a felonious intent. Major Semple’s case, 1 HaL 805, 507. The possession of the owners remained, legally speaking. Couch’s testimony was properly admitted. The verdict on this indict!'.tent cannot be given in evidence on a trial between Darke and him. Peake, 140. His testimony was not directly to his own interest. His interest is incidental. Not like an indictment for forgery, where the person whose name is forged cannot be a witness to prove the forgery.
   19th January, 1811.

Nott, J.,

declared the opinion of himself, Grimace, and Brevard, Justices, in favor of a new trial, on the. ground that Couch wab inte,rested in proving the forgery, and, therefore, was not an admissible witness. Suppose there had been no other evidence;, of the forgery, and the bill of sale and receipt Were genuine ; and by this testimony the negro should be restored to Durke, or sold ageing and the money paid to him. Would not Couch’s interest palpably and directly appear 1 Whether these writings be true or false, ought not, therefore, to depend on his testimony. This is a case within the reason and spirit of the rule. The interest is as certain, and direct, as in the case of an indictment for forgery. The temptation to perjury is equal. It seems probable that the prisoners are, guilty, but the verdict being in part founded on illegal evidence, ought to be set aside. There is nothing in the other objection. In the commission of larceny, a party may commit swindling. If two crimes are committed by the same act, or series of acts, the malefactor ought to be prosecuted for the greater crinfie, which includes the less.

Bay, and Smith, Justices.', dissented, as to the first point, in relation to Couch’s testimony. They were of opinion lhathis interest was not sufficient to exclude him from giving evidence of the forgery ; especially, as Hope, one of the defendants,'.had, before the trial, declared on oath that Brown, another of the defendants, committed the forgery. The evidence was, at any rate, good against Hope. Hope, had disavowed the purchase. Brown did not claim under the bill of sale, nor Cashman. The evidence of the forgery went to prove an unlawful combination, to obtain fraudulent possession of the negro, not to defeat the bill of sale, "¿fee.  