#### State v. Welsh.

T (. From 'Rutherford. j

The title of a statute is no part thereof: when, therefore, the state on an indictment for forgery produced a certified copy of an act of South Carolina reciting the title of another act of that state, it was held that this evidence was not sufficient to establish the present existence of the act referred to: a certified copy of the act itself would be better.

The defendant was indicted for attempting to pass t® one William M. Smith a forged note of one hundred dol-*405jars on the bank of South Carolina, with intent to defraud Smith, and knowing the same to be forged.

The indictment charged' that the defendant “ being an evil disposed person and designing and intending feloni-ously to defraud one William R, Smith, on the first day of October, in thé year of our Lord one thousand eight hundred and twenty-two, in the county of Buncombe aforesaid, did attempt to pass feloniously and fraudulently to the said William R. Smith, as good and genuine, a false, forged, and counterfeited bank note purporting to be a good and genuine bank note of one hundred dollars on the Bank of South Carolina, ‘ which false, forged, and counterfeited bank note is as follows, to wit: [Here follows the note,] with intent, &c. he the said William Welsh then and there well knowing, &c.” .

On the trial before Badger, Judge, the attempt to pass the note, and defendant’s knowledge that it was not genuine,, were satisfactorily proven. To show that there-was such a hank as that mentioned in the indictment, the state offered in evidence a duly certified copy of an act of the legislature of South Carolina, passed in the year 1802," entitled "an act to incorporate the State Bank, and imposing certain restrictions on the directors, officers and servants of banks in this state. The only part of this act material to this purpose was the first section, in these words: “be it therefore enacted, that so much of the act passed on the nineteenth day of December in .the year of our-Lord one thousand eight hundred and one, entitled “an act to incorporate the South Carolina and State Banks,” as relates to the said State Bank, be and the same is hereby-repealed.

Two objections were taken to this evidence: 1st, that the law produced was not the act of incorporation, but ah act which referred to it; and 2nd, that the act referred to incorporates the South Carolina Bank, and not the JBank of South Carolina mentioned in the indictment.

The judge received the evidence, and left it to the jury *406to say upon that evidence, whether there was such a bank as “ the South Carolina Bank” mentioned in the act, and whether that is the same bank with the Bank of south Carolina mentioned in the indictment.

The jury found the defendant guilty; a new trial having been refused, the defendant appealed; and now,

Gaston, for the appellant,

contended, that the best evidence .of the existence of the bank in question had not been produced; a statute is introduced, referring to a prior statute, which, in its title, incidentally mentioned the existence of the South Carolina State Bank: the orginal is certainly better evidence than any thing referring to the original. Had the act produced actually contained a copy of the enacting words of the first act, it would have been insufficient, because the very means used to procure a copy of the second would have procured a copy of the first; much more strong then is the objection, when nothing is producéd but the copy of the title of the first act: the title is no part of the act. (6 Bac. Ab. 369. Wilson’s Ed. 2 Cranch 365, 6.) The law demands the best evidence. (Gilb. Ev. 4. 1 McNally 342. 1 Chitty C. L. 388. 4 Mass. II. 646. 3 East R. 192. 3 Bos. and Pull. 188.)

The judge left it to the jury to ascertain, on this evidence, whether South Carolina had established such a bank: it was his province to determine on an inspection of the act produced.

The indictment speaks of the Bank of South Carolina, the statute produced speaks of .the South Carolina State Bank: the variance is fatal. (9 East 188. 2 Bos. and Pull. 281.)

The Attorney General, contra,

cited 11 East 118. 1 Ball. 41. 2 Taunt. 334. 2 Leach 1005.

Taylor, Chief Justice.

This is an indictment for attempting to pass as good and genuine, a forged note of one hundred dollars on the Bank of South Carolina. In *407order to prove the existence of such a bank, a certified copy of an act of the legislature of South Carolina is introduced, which was passed in the year 1802, and entitled «an act to incorporate the State Bank, and imposing certain restrictions on the directors, officers and servants-of banks in this state.” The first section of this act, the only part of it shown in evidence, repeals so much of the act passed the 19th December, 1801, entitled “an act to incorporate the South Carolina and State Banks,” as relates to said State Bank.' The objection taken to. this evidence is, that it is not a certified copy of the act of incorporation, but of another act referring to it. It must be acknowledged, that a certified copy of one act is, as far as it goes, equal to a .certified copy of another act, though it may not afford equal assurance of the fact. It is evidence of the same kind; and its sufficiency to establish the fact is to be judged of by the jury;* in the same manner as the execution of a deed may be proved by one subscribing witness alone, although them are others to the deed who are not called. Accordingly if the copy now offered, recited the act of 1801,1 should deem it unexceptionable, as coming from the same source with a copy of the first act, made on purpose to be certified. But here the title of the act of 1801 is alone recited, and it may be presumed from hence, that evidence of a higher degree, viz. the act itself, or a copy, is kept back, and then, the legal presumption follows, that if it were produced it would disprove the fact sought to be established. The fact in controversy here, was, whether, when the defendant attempted to pass the note, viz. the 1st of October, 1822, there was such a bank in existence ' as the Bank of South Carolina. The best evidence of that fact is a copy of the law enacting the bank, lor that, alone, can show the duration of its charter; but the evidence offered is the recital of the title of such act. The title of an act is not part of the act, (Barrington 444. 1 Ld. Ray. 72.), and appears to me to be inferior evidsne* *408to the act itself. On this ground I think there ought tb" be a new trial.

Judge Harr was of the same opinion.

Henderson, Judge.

To bring the offence within, the act of 1819, under which the'defendant is indicted, the state must prove not only that there once was, but that there was on the day the note in question bears date, such a bank as the note purports to .be issued by, and that the, note, if genuine, would be obligatory on said bank. These are questions of fact; hut the evidence by which they are to be proven must first be judged of by the Court, to see that it is competent and relevant. A fact may be proven two ways; first, by proof direct; secondly, not by proving the fact in controversy, but by proving some other fact, from which such fact may be inferred. To give the utmost credit to the evidence in question, as to its direct' effect, it only establishes, and that by way of recital and implication, that the legislature of South Carolina, in the year 1800, passed .an act incorporating the bank in question. But whether that act, by the terms of its limitation, continued up to the time this note bears date, or expired before; whether this is the form of these notes; whether they act in this, or any other particular, by a president, directors, and cashier, or by either of these officers, or whether they have such, in no wise appeal’s. They may act entirely in a different manner, and by different officers and organs; that they do act in making notes by a president and cashier, is founded only in conjecture, because most banks have such officers and act by them, and use this form in making their notes. But conjecture is not the basis on which judicial proceedings rest. I say, that these facts neither appear by direct prpof, or by an in- ■ ference warranted by law; and if so, the Court should have put its hands upon it as irrelevant. I think it should also have been rejected, because the very evl-*409deuce itself shows upon its face that the party offering it has better evidence iii his power or possession; for the production of a law of an adjoining state properly certified, is certainly within the power of the state. And the act produced, by its recitals and references, shows that there is such an act; in truth, the contents of these very recitals and references, the state contends, prove the existence of the act in question. The act introduced is therefore secondary evidence, as to such inferences; for it shows that if the facts exist, the party has it in his power to produce the,primary evidence, showing their existencé. This, therefore, is not a verdict contrary to the evidence, but a verdict without evidence. It is a mistake to say that judges may draw such inferences of fact as they think proper. They are' bound by the- law, and cannot make inferences which the law does not warrant, any more than they can find against a legal presumption.' They can no more infer that A knows a fact because B, a stranger, knows it, than they can infer that when A with a knowledge of what he was about, puts a pistol charged with a proper portion of gunpowder and an ounce ball to the breast of B, that A did not intend to kill B; for the law presumes the intent by his using a weapon proper to effect it. But in the case first put, if A is the wife of B and the thing is of a family and domestic nature; and iir the case last put, if the weapon is not of a deadly kind, and the question of intent is therefore less doubtful, so that there is not a legal presumption one way. or the other; the question of inferring knowledge in the one case, and of intent in the other, is left to the jury, as within their legitimate powers; which shows that a jury has not the arbitrary power of drawing inferences which the facts will not in law warrant. Whatever, therefore, may he the facts, I am satisfied that the evidence did not, in law, warrant the jury in saying that there was, on the day the forged note bears date, such a hank as it purports to he issued by, and that the note? if genuine, was oblige,-*410tory on such bank; and, therefore, the evidence should not have been submitted to them. Let the rule for a new trial be made absolute.