Salisbury v. State

Brainard, J. Three questions arise, or are made, in the case. 1. Is the information sufficient, in point of accuracy and definite description of the property ? 2. Was Booth, the owner of the property, a competent witness ? 3. Was Mills, the inn-keeper, a competent witness ? The first question, I think, is easily disposed of. The description of the property “ bills against the Hartford Bank, for the payment of money, issued by the president, directors and company of that bank, incorporated by law,” is sufficiently de [104] finite and specific to distinguish that kind of property-to distinguish those bills from all other bills that could have a possible relation to that bank. The second question is worthy of a more serious consideration. It is contended, on the part of the plaintiff in error, that Booth was an incompetent witness; that he was interested in the event of the suit; for that under this process, in case of conviction, it was the indispensible duty of the court to render judgment in his favour for treble the value of the property stolen. If this be so, the objection is fatal; for this point was settled many years ago, by a learned and respectable court in the case of the United States against Williams. That was an action brought on a statute of the United States for the recovery of the penalty for an attempt to bribe an officer of the customs ; under which statute, in case of conviction, the officer would be entitled to a part of the penalty. The officer, who, it was alleged, had been tampered with, was offered as a witness. An objection was made to his competency, on the ground of interest. On the part of the United States, the argument of necessity was powerfully urged ; but the court sustained the objection. In that case, the statute of Winton, 13 Edward I. and the construction of it, was strongly and ably pressed upon the court. The first case I find on the construction of this statute, and which has been the foundation of all the doctrine of necessity on similar subjects, is in Rolle's Abridgement, 685, 686. This was an action brought on the statute, by a carrier, against a hundred. Bennet v. The Hundred of Hertford. The essence of that case is in few words. They are, that “ if a man be robbed, although he was plaintiff, yet he might be a good witness to prove himself to have been robbed, and of what sum or things ; and also to prove, that he gave notice to the next ville, and levied hue and cry ; for this is of necessity, for default of other proof.” But the question still recurs, was Booth interested in the event of the suit ? Could the court, under this process, in case of conviction, have given judgment for the treble value of his property, or could he avail himself of any judgment under it, in an action he might bring for the satisfaction of his own injury? To the last question the answer is, he could not. Booth is not a [105] party to the process, either directly: or indirectly. Should he commence a suit for the recovery of his own damages, he must prove his case, by testimony aliunde of such record, for he is a stranger to it. It seems the court did not, under this process, render any judgment in favour of Booth, but ordered the infliction of the statute punishment. The statute of this state in relation to theft, so far as it regards this point, is “ that every person, who shall steal any money, goods, &c. being duly convicted thereof, shall forfeit and pay treble the value of the property stolen to the owner thereof.” This statute, in substance, is ancient, and has had a pretty uniform practical construction. There may have been some few solitary exceptions. For his own injury, Booth might have brought on this statute his suit qui tam; and if prosecuted to effect, it would have superseded any public prosecution for the crime ; and in case of conviction, he would have been entitled to judgment for the treble value of his property ; and the court would have ordered the infliction of the statute corporal punishment. Under such process, Booth would have been entitled to his oath : he was a witness, competent, to a certain extent, to the loss and identity of his property ; and this, I apprehend, is in accordance with the true spirit of the construction given to the statute of Winton, as decided in the case referred to, of Bonnet v. The Hundred of Hertford. If the party injured will not avail himself of the statute remedy, he must get redress when and how he can. The public prosecutor cannot help him ; and the court cannot know him. As to the remaining point, whether Mills, the inn-keeper, was a competent witness, it appears to me, that a conviction of Salisbury, on a public prosecution, could be no bar to an action in favour of Booth against Mills ; certainly not, if Booth could not be interested in such prosecution. Let Mills’s liability to Booth be what it would, it could not be affected, by the conviction of Salisbury. I would advise, that the judgment of the county court be affirmed. Hosmer, Ch. J. and Lanman and Daggett, Js. were of the same opinion.