#### State v. Twitty.

From Lincoln.

When a wit,icss is called, who, in the comiueucerucut ot his ix-sumo. ny, states himself to be an accomplice of the acense !, it. is regular, before the witness is attacked, to cull on another W’tness to prove ihat the first had rb luted the facts disclosed in his evidence, immediately after they happened, and to state other confirmatory facts — such evidence is to be considered as substantially ¿¡ven in reply.

When ail indictment charges a Defendant with forging a bank note, “purporting to have been issued, &c. promising to pay, it must be understood as descriptive of a bill, pm,poj,!i,ig to promise, as well as purporting to have been issued.

This was an indictment against the Deibnd.int, charging that he “ of his own head and imagination, did wittingly, falsely, and feloniously make, forge, and counterfeit, and did wittingly assent to be forged, made, and counterfeited, a certain promissory note, commonly (tailed a bank note, purporting to have been issued by the President, Directors and Company of the Bank of Cape-Fear, promising to pay John Mitchell or bearer, on demand, three dollars, which said promissory note, commonly calk'd a bank note, so falsely made, forged/ and counterfeited, is as follows, that is to say — (the noto was here set out verbatim) — with intention to defraud the President, Directors, and Company of the Dank of Cape-Fear,” &c.

On the trial trial below, Langford was introduced as a witness for the State, and swore that he received the bank note in question, with eight others, for the same amount, from the Defendant, who told him they were counterfeit; and further ihe witness stated that he had frequently before received forged notes from Twitty, when it was well known to both of them that they were so. On the night previous to his obtaining these nine forged notes from Twitty, the witness staid at the house of Foster his brother-in-law, about three miles from *450Twitty’s j early on the following morning lie went to Twitty’s, received the notes, returned on the same day to Foster’s; and shewed him the bills, telling him in con-f1(]cr)CCj tiiat he had obtained them from Twitty; Langford was admitted to be an accomplice, and- to corroborate his testimony, Foster, who was above suspicion, was sworn, and stated substantially what Langford had already deposed. Foster’s testimony was objected to, but the Court received it. There was much testimony of a circumstantial nature, which it is unnecessary to detail. The Defendant was found guilty, and moved for a new trial, on the ground that Foster’s testimony should not have been received : a new trial was refused, and he then moved in arrest. 1st. Because the record sent from the county of Rutherford (whence the cause had been removed) to Lincoln, did not shew that a grand Jury had been appointed according to daw, by whom the bill was found. 2d. That the indictment contained no averment that the forged instrument was set out according to its tenor. Sd. That the charges in the indictment, descriptive of the offence, were not in the words of the statute. 4th. The record was not such as would authorise a jdgment. The reasons in arrest were overruled, and sentence passed. Defendant appealed to this Court.

Gaston, for the Defendant.

Foster’s testimony was •inadmissible — Langford was a witness, and to corroborate what he had stated, Foster was called. The general principle is, that evidence against any man must be given on oath, In presence of the accused. If there be any exception to this rule, ho who claims its benefit should shew it. The declarations of Langford were not on oath in presence of Twitty. The only case at all in point, to support this testimony, is Luttrel v. Eennil, et. at.— (1 Mod. 283.) There evidence was received to support the testimony of one Maynard, it does not appear that Maynard’s testimony was attacked, though probably it *451was, and the Lord fíh. Baron of the Eocdieqner, says, though hearsay is not to be allowed as direct evidence, yet it «¡ay be made, ties of to shew that a witness is consistent with himself, and thus corroborate his testimony. Indeed, it is a general ride, that until a witness is attacked by the other party, ho evidence to support him is admissible.

Ihdler, remarking on the rule that hearsay is not evidence, comments on this case in i Mod. 283, and observes, “ clearly it is not evidence in chief? and it seems doubtful whether it be so in reply. — (BidL JV*. P. 294.)

The convenience of sometimes admitting such testimony is no argument of its propriety, and general convenience will be best promoted by an adherence to the rule that hearsay is inadmissible — ■ (J-Stng v. Elite-wall, 3 Term Rep. 707.)

Bid there arc reasons in arrest of judgment.

7. The record does not shew that any one of the Grand Jury was sworn but the foreman ? for it is certified that the Jurors were drawn, aw;! the foreman sworn.

2. The indictment Is defective in stating the offence— a false, forged, and counterfeited note, purporting to have been Issued by, &c. promising to pay,5’ &c. There is a repugnance, it purported to have been issued, but actually promised to pay — -(TAe IT. States v. CantriU, 4 Crunch, 167 — 2 East C. L. 985.)

3. The indictment is for a felony, and the prisoner has been found guilty of a crime which is but a misdemeanor — (2 JV*. R. 937 — -lei of 1801.) He cannot be punished — "(S Murph. 571.)

Taylor, Chief-Justice.

A motion for a new trial, in this case, is made upon the ground, that the witness, Foster, was admitted io testify to Langford’s (a witness) declarations, madyT&t him about the time when the occurrence took place, which Langford was introduced to prove. It is said, that such evidence is merely hea!.'-ay, and if admissible in confirmation of Langfords evidence. *452could only be ix it. reply, after the credibility of the latter hod been attached; and that under no cimmwic.iice, it in evidence in chief. The authorities relied upon, aro a note in Phillips mi Evidence, who remarks on the case of Luttrell v. Reynell, in 1 Mod. 282, where such confirmatory evidence was offered in chief, that, it would not now be allowed, and Bailer's nisi prius, 294, where a doubt is stated, whether it is good evidence in reply.

It seems to me not to be a just construction of the Case of Luttrell v. Reynell, to consider the confirmatory evidence as offered in chief $ for suspicion maybe thrown on the cvider.V of a witness, from the nature of his evidence, from t ;e situation of the witness, or from imputations directed against him in the cross examination, which may he not less effectual in discrediting him, than direct evidence brought to impeach his testimony, and equally call upon the party introducing him, for confirmatory evidence. The witness, in the case cited, appeared, from hir. own evidence, to have bee» equally concerned with the defendants in the trespass, and was left out of the-doci&ration in order that he might be a witness ; but as he was giving testimony to discharge himself, which would be the effect of convicting the Defendant, he appear, ó in a suspicious light, and therefore, his declarations formerly made, to the same amount, with bis evidence, were introduced to restore him to the same degree of credit he would have had, if no motive had ever existed for his departure from truth. Had he been free from suspicion, such confirmatory evidence would have been peitectly useless; and ghen fis it was, it must have been substantially in reply to these suspicions. Though an accomplice is a competent witness, yet his unconfirmed cv Hence is usually received with caution, and distrusted by a Jury j'.and I cannot bin regard evidence of his previous declarations vise-proper, in reply to hose circumstances of discredit, which arise from the relation in which, he stands to the Defendant. If ap-pcared, in the very beginning, of Langford s evidence? *453toas he had beca an accomplice of Twitty’s j and it is airily probable, tiiat he would havo been discredited with the Jury from this cause, had not Foster proved •¿hat the witness had related to him the facts disclosed in bis evidence immediately after they happened, and added such circumstances as seemed to preclude all doubt ®f the veracity of Langford. Considering the evidence there as having been given, and properly given, in re - ply, I think it is authorised by law, and atn certain it has been long sanctioned by the practice of tiiis State. For this reason, Í am opposed to a new trial.

It is moved, in arrest of judgment, that the indictment is repugnant in charging the Defendant with forging a Hank note, purporting* to have been issued by the President and Directors, and Company of the Bank of Cape-Fear, promising to pay, &c. In support of this objection, was cited 6 Cranck, 167, where it was held, that an indictment under the act of Congress, 1798, could not be maintained for forging a counterfeit paper, purporting to be a Bank bill of the United States, signed Thomas Willing, &c. since a forged bill, purporting to be a Bank bill, could not be signed by the President. But in that case, it appeared that the act of Congress was., in itself, repugnant, and would not support an indictment for uttering, ao true, a forged paper, purporting to he a Bank bill of that Bank, signed by the President and Cashier. There is no repugnancy in the act cf 1819, upon which this indictment is framed, for the offence consists in uttering, as true, any false, forged, or counterfeit bill or note, purporting to be a bill or note, Issued by the the order of the President and Directors of any Bank or corporation within this State, or any of the United States. The indictment unnecessarily goes further, and states a promising to pay to John Mitchell, 4c. but it is not repugnant; for if the Court reads it as others would, it must he understood as descriptive of » MIL purporting to promise, as well as purporting to be *454issued’by the President and Directors: and as purporting imports what appears upon the face of the bill, so this, when produced, corresponds with the description. In the other exceptions taken to the form and expressions of thb transcript sent up to this Court, I see nothing substantial.

The other Judges concurred.