#### STATE vs. CHARLES A. BATEMAN.

June 1843

A judgment was obtained before a justice of the peace against A- and hw surety B. B. paid a part of tile judgment and took the constable’s receipt, which receipt ho fraudulently altered so as to make the sum larger. Af-terwards A. settled with B. and repaid him what appeared by the receipt to have been paid by B. Held that on an indictment against B. for the forgery, A. was a competent witness for the State.

Appeal from the Superior Court of Law of Washington county, at Spring Term, 1843, his Honor Judge Pearson" presiding.

The defendant was tried upon the following indictment, viz:

“The jurors for the State upon their oath present, that on the ninth day of November, in the year one thousand eight hundred and forty, at and in the county of Washington, one Caleb Phelps confessed a judgment for the sum of forty-three dollars and seventy-nine cents, \vith interest from the 6th of January in the year aforesaid, in favor of one Wm. A. Spruill, and also for the costs due on a warrant, which theretofore had been brought by the said Willfam A, Spruill against the said Caleb Phelps, before Ashbury Norman, then and there being one of the justices of the peace in and for the county of Washington, and that stay of execution on the said judgment was, on the day and year aforesaid, then and there granted to the said Caleb Phelps by the said Ashbury Norman agreeably to law, he the said Phelps giving as surety one Charles A. Bateman. And the jurors aforesaid, upon their oath aforesaid, do further present that af-terwards, to wit, on the 10th day of July, in the year 1841, in the county aforasaid, the-said Ashbury Norman, then be*475ing one of the justices oí the peace for the county aforesaid, issued an execution on the said judgment against the goods and chattels of the said Phelps and the said Bateman, which said execution duly went into the hands of one John Freeman, then being one of the constables in and for the said county, and having full power and authority to execute the same ; and the jurors aforesaid, upon their oath aforesaid, do further present, that the said Chrrles A. Bateman, after-wards, fo wit, on the fourteenth day of August in the year-last aforesaid, with force and arms in the county aforesaid, of his own head and imagination, did wittingly and falsely forge and make a certain receipt for the payment of money, which said false, forged and counterfeited receipt for .the payment of money is in the words and figures following, viz:

“ August the 14th, 1841. Rec’d of Charles A. Bateman twenty-eight dollars and sixteen cents in full of this claim. Cost one dollar. J. Freeman, Const.” with intent to.defrauá the said Caleb Phelps, contrary'to the form ol -thé statute in such case made and provided, and against the peace and dig* nity of the State.

And the jurors aforesaid, upon their oath aforesaid, do further present that the said Charles A. Bateman, with force and arms, in the said county, afterwards, to wit, on the day and year last aforesaid, did wittingly and knowingly utter and publish as true, a certain other false, forged and counterfeited receipt for the payment of money, which last mentioned false, forged and counterfeited receipt for the payment of money is in the words and figures following, to wit, (here the same receipt as in the foregoiug count is recited,) he, the said Charles A. Bateman, at the time he so uttered and published the said last mentioned receipt for money, as true, well knowing the same to be false, forged and counterfeited, with intent to defraud one Caleb Phelps, contrary to the form of the statute, in such case made aud provided, and against the peace and dignity of the State.

And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Charles A. Bateman, with force and arms in the said county, afterwards, to wit, on the day *476an(j year last atoresaid, of his own head and imagination, did wittingly and falsely forge and make a certain other receipt for the payment of money, which said last mentioned forge(j anq counterfeited receipt for the payment of money is in the following words and figures, to wit, (here the same receipt is recited,) with intent to defraud one Caleb Phelps, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State.”

On the trial, the Solicitor for the State read in evidence a judgment in favor of one Spruill against Caleb Phelps for $43 79, which was stayed by the defendant, and an execution therefor against Phelps and the defendant. A credit of $20 was endorsed as a payment made by Phelps, and at the foot of the paper was a receipt, written and signed by one Freeman, the constable, who had the execution to collect, as set forth in the indictment, except the word “eight,” which was written on some other word that had the appearance of-being defaced, and the words “ cost one dollar,” which were ■ written under the receipt, and admitted to be in the handwriting of the defendant. The forgery alleged was in altering the word “ six” to “ eight,” so as to make the receipt read “twentyeight dollars” instead of “twenty-six dollars,” and in adding to the receipt the words “ cost one dollar.”— One Davis swore that on the day of August, 1841, (that being a law day at a place called Cool Spring) Freeman, the constable, requested the witness, in the presence of the defendant Spruill, the creditor, and Phelps, the original debtor, to calculate the balance due on the execution ; saying the defendant was to pay it. The witness made the calculation and ascertained the balance to be, including interest and costs, $26 16, which he stated to the parties. The witness then left them to attend to his own business. Sjiru-ill, the creditor, swore, that after Davis made the calculation the defendant immediately placed $26 on the counter, which Freeman pushed to the witness, who was standing by his side. The .defendant then handed Freeman .the 16 cents *477change, which Freeman handed to the witness, and the witness then gave Freeman one dollar, the amount of his costs; and so the execution was fully paid, he receiving $26 16 out of which the officer was paid one dollar for costs. He stated that the defendant then asked Freeman to write a receipt on the paper, to enable him to settle with Phelps.— Freeman took up a pen and wrote something, which the witness supposed was the receipt, although he paid no further attention to it. The witness said he was well acquainted with the hand-writing of Freeman, and also the handwriting of the defendant; that the whole of the receipt then exhibited was in the hand-writing of Freeman, except the word “eight” (that seemed to be written on some oth.er word, which was defaced,) and the words “ cost one dollar;” that the latter words were' in the hand-writing of the defendant, but he could not be positive, as it was written on some other word, and seemed to be rather a feigned hand, as if in imitation of Freeman’s writing. But he was certain it was not Freeman’s hand writing. This witness also stated, that Freeman had, a short time before the court, removed to the western country. The defendant took the papers, after Freeman had written upon them the receipt in question.

One Davenport corroborated the testimony of the preceding witnesses. The Solicitor for the State then called Caleb Phelps. He was objected to by the defendant’s counsel, because he was the person to be charged by the receipt, and whom it was alleged the forgery was intended to defraud.— The Solicitor stated, he was prepared to shew that Phelps had settled and fully paid off the liability he was under by reason of the receipt, and was permitted by the court to proceed with the-examination. Phelps swore, that the defendant, being indebted to him by note, had agreed to pay the balance of the judgment, and take the officer’s receipt therefor. which Phelps was to allow as a credit on settlement.— He gave much the same account of the payment of the balance of $26 16, as the witness Spruill. He further stated^ *478that, some four or five months after the defendant bad paid the money, he and the defendant met to settle; that in making the calculation to see how much would be the balance 0Q Qoíe tjie defendant, and what credit the defendant was entitled to, the defendant, among other items, produced the execution and receipt in question, and said, “ The receipt is fer $28 16. I also paid the officer’s cost, one dollar, which he did not give me a receipt for, but I set it down at the bottom of the receipt for fear of forgetting it.” The defendant was allowed a credit for the $28 16, and also for one dollar as for costs paid the officer, and when the balance was struck, gave his note to the witness for such balance. As soon as the balance was ascertained, the defendant said he would take .up the old note and give a new note for the balance. He did so, and said, 1! we had as well burn up the old papers,” and accordingly tore up and cast into the fire the old note. But the witness, who had then got the judgment, execution and receipt in question into his possession, did not burn them, because, although he was an illiterate man and could not read, and did not like to dispute with the defendant as to the receipt, he was confidont it ought only to have been $26 16, including costs, and wished to see the officer before he made any objection. A few days afterwards, meeting Freeman and the defendant at the Cool Spring, he showed the receipt. Freeman, ns soon as he looked at the receipt, said, “ Whose wo.rk is this? It is none of mine.”— The defendant said, “ I’ll swear I paid you $28 16.” ^Freeman said again, “ Whose work is this?” to which the defendant againreplied, “I’ll swear 1 paid you $28 16.” They then seemed angry and separated. The witness stated, that afterwards the defendant offered to pay him back the $3, if he would take up the receipt and not have the defendant indicted.

Hardy Phelps corroborated the preceding witness as to the settlement between him and the defendasrt. Several other witnesses were examined, who did notvary the case.

The court charged that as to the “ cost one dollar,” as it *479was not interlined but merely put at the bottom of the ceipt, and the defendant ex-plained at the time, although- the jury might think-he thereby got a dollar too much, it did not amount to forgery. Upon the other charge for altering “ six to eight,” the matter was left to the jury. The jury returned a verdict of guilty. The defendant moved for a new trial, because the court should have rejected the testimony of Caleb Phelps. The motion was refused, and judgment having been pronounced against the defendant, he appealed to the Supreme Court.

Attorney General for the State'.

No counsel for the defendant-.

Daniel, J.

We think that the decision of the Court, upon the competency of Phelps as a witness for the State, was right. We admit that the case of forgery stands by itself, and is considered as an anomaly in the law of evidence; In that case the party; who has- an interest in setting aside the instrument, is not admitted to prove it forged, if he would either be liable to be sued on it, supposing it genuine, or be thereby deprived of a legal claim against another, 2 Stark. 338. Phillips, 88. But if the witness would not' incur any loss nor be liable to a suit, his evidence ought to be received, as when he had paid off the forged instrument. 2 Stark. 339. Phil. Ev. 90. Here the payment of the instrument was proved not' only by the person offered, but also- by another witness.

Secondly, it is contended, that on this record the court had no power to'render any other than a common law judgment. We have examined the record, and it is in substance eorrect in all its parts. The indictment in every count concludes against the statute. The verdict is, “ that the defendant is guilty in manner and form as charged in the indictment.” The statute- (Rev. Stat. 34 ch. s. 21,) declares a*480mong other things, that for the forging of any acquittance or receipt for money or goods, with intent to defraud any person or corporation, the person convicted shall be adjudg-This record, we think, brings the defendant within the provisions of the statute, and we also think that a statute judgment was the proper one to have been rendered by the court against him. We see no error in the record, and this opinion will be certified, &c.

Per Curiam. Ordered accordingly.