United States v. Murphy (41 U.S. 203)

CERTIFICATE OF DIVISION from the Circuit Court for the Southern District of New York. On indictment for stealing sovereigns, while on board the ship Carroll of Carrolton, on the high seas.

The defendants, William Murphy and William Morgan, were indicted under the 16th section of the act entitled, 'an act for the punishment of certain crimes against the United States,' approved on the 30th of April 1790, for taking and carrying away, with an intent to steal and purloin, on board of an American vessel on the high seas, one hundred and two gold coins called sovereigns, each of the value of five dollars, of the personal goods of Francis McMahon.

The defendants having pleaded not guilty, and the case being brought to trial, Francis McMahon, the owner of the property described in the indictment, was called as a witness on the part of the United States, to prove the ownership of the said property, and that it had been stolen from him, in June 1840, in his passage on board the ship Carroll of Carrolton, from Liverpool to the city of New York; and also, to prove facts and circumstances tending to show that the defendants were guilty of the said offence; to the competency of which witness, as to either of the said matters, the counsel for the defendants objected, on the ground, that he was interested in the event of the suit; and so interested that he would not be rendered competent by any release to be executed by him. And, thereupon, the judges were divided in opinion upon the following questions which were presented for their decision. 1. Whether the said Francis McMahon, the owner of the property alleged to have been stolen, was a competent witness to be examined on the part of the United States, as to all the matters above mentioned? 2. If not competent to testify as to the guilt of the defendants, whether he was competent to prove the ownership of the property described in the indictment, and that it had been taken and carried away, with intent to steal and purloin? 3. If not competent for both or either of the above purposes, without having released his interest in the fine to be imposed on the defendants in case of their conviction, whether, by releasing to the United States all his right to and interest in such fine, his competency would be restored? Which said points, upon which the disagreement has happened, were stated above, under the direction of the said court, at the request of the counsel for the parties in the cause; and were ordered to be certified unto the supreme court of the United States, at the next session, pursuant to the act in such case made and provided.

The case was submitted to the court, without argument, on the part of the United States, by Legar e, Attorney-General.

Nash, of counsel for the defendant, presented a printed argument.

1. The witness, Francis McMahon, the owner of the property charged to have been stolen, was not a competent witness to be examined on the part of the United States, in this cause. The indictment is founded upon the 16th section of the act approved April 30th, 1790, being the act for the punishment of certain crimes against the United States. (1 U.S. Stat. 116.) The section upon which the indictment is founded, among other things, declares, that 'if any person, upon the high seas, shall take and carry away, with an intent to steal or purloin, the personal goods of another, the person or persons so offending, their counsellors, aiders and abettors, knowing of, and privy to, the offence, shall, on conviction, be fined not exceeding fourfold the value of the property so stolen or purloined; the one moiety to be paid to the owner of the goods, and the other moiety to be informer and prosecutor.' In this case, the witness is both the owner of the goods and the informer and prosecutor; upon the conviction of the defendants, the whole fine against them must be paid to the witness direct, without any suit or further proceedings; the court have no power to dispose of the fine, in any other manner, and nothing can be inflicted upon the defendants, on conviction, by way of sentence, but the fine; as whipping is abolished by the act of congress. The witness is directly interested in the sentence, the temptation to false swearing is great-immense; and increases just in proportion to the difficulties that surround the case to detect perjury.

Suppose, the witness should swear that fifty eagles were stolen from his trunk, then the sentence might award him two hundred; should he swear that one hundred were stolen, the sentence might award him four hundred; and so on in an arithmetical ratio; while his testimony could be confined within the bounds of probability or possibility, no one could detect the falsity in regard to the number of pieces stolen; the starting point is in the dark, concealed in his own bosom; perjury could not be detected; he might safely allege his trunk to be full of gold, and no one be able to testify to the contrary.

Informers are, generally, incompetent witnesses, where they are to receive any portion of the decree, sentence or judgment, without the necessity of a second suit. The Thomas and Henry, 1 Brock. 374; Tilly's Case, 1 Str. 316; Rex v. Stone, 2 Ld. Raym. 1545. By the common law, informers who are entitled under the statute to part of a penalty, are not competent witnesses. 1 Phil. Evid. 125; 2 Ibid. 166. In the present case, the act of congress does not intimate that the informer is a competent witness; without the aid of the statute, the informer is not a competent witness; the statute can receive execution, without the party seeking to recover the penalty being admitted as a witness. Salisbury v. State of Connecticut, 6 Conn. 101.

2. The witness, Francis McMahon, was not competent to testify or prove the ownership of the property described in the indictment, and that it had been taken and carried away with intent to steal or purloin. The witness, if sworn in the cause for one purpose, in chief, becomes a general witness for all purposes; he is not more interested in any one part of the controversy than in another; he does not come within the rule in chancery, that a witness may be examined as to that part to which he has no interest. The witness once sworn in chief becomes a witness generally. Varick v. Jackson, and authorities there cited, 2 Wend. 166. A person who has had his name forged upon an instrument, is not a competent witness even to prove any fact besides the forgery which may contribute to the general conclusion of guilt; and in case of a person whose goods have been stolen, he was a competent witness at the common law, only upon the ground, that the civil remedy was merged in the felony, and the party could not obtain restitution of stolen goods upon conviction; this was only to be obtained upon an appeal of felony. The statute of 21 Hen. VIII., c. 2, gave full restitution of the property taken, after the conviction of an offender, of robbery. The writ of restitution was to be granted by the justices of the assize; and at the present day, it seems, that if the prosecutor has been guilty of any gross neglect in his duty to the public, in bringing the offender to justice, he will not be entitled to the benefit of the writ of restitution. 1 Chit. Crim. Law, 7, 817. The reason that a person is a competent witness at the common law, to prove that his goods have been stolen by the defendant, and on such testimony to convict him, was, that the prosecutor could obtain nothing by the conviction of the defendant. The prosecutor whose goods have been stolen has been made a competent witness, in a prosecution against the offender, upon whose conviction he obtains restitution of the goods, by force of the statutes; the statutes have made the prosecutor a competent witness; he is not such witness, without the aid of the statutes, since he is to obtain restitution of his goods, upon conviction. The difficulty in the present case, in regard to McMahon, is, that no statute of the United States has made him a competent witness; and without the aid of such a statute, he cannot be a witness by the common law, as he is directly interested in the sentence.

3. The witness, McMahon, cannot release to the United States his right to, and interest in, the fine to be imposed upon the defendants, in case of conviction; and therefore, his competency cannot be restored or created. The United States are not authorized by law to take such a release; the right to a share of a penalty, or the whole of such penalty, cannot be released or assigned. Commonwealth v. Hergesheimer, 1 Ash. 415. Nothing would exist to release or assign, at the time of making the same; the right has not then accrued; an estate cannot be granted by deed, to commence in futuro; such deed is void. See Co. Litt. 265. The party may release a possibility coupled with an interest; but a naked possibility is not subject to a release. See Jackson v. Waldron, 13 Wend. 178.

STORY, Justice, delivered the opinion of the court.