I concur with the Chief Justice ; and I. have no hesitation in saying, that independent of the cases cited, which have been adjudged in Pennsylvania, Joseph Ileister should be admitted as a witness. And he was sworn accordingly.
Jacob Morgan was then offered as a witness, with a full admission of his responsibility to pay the forged note which he had indorsed; and was excepted to.
It was contended on the part of the prosecution, that he had no interest in the event of the suit. If the defendant was convicted, Morgan must, notwithstanding, pay his indorsement; and he could neither recur to Heisler nor Smith, whose signatures have been proved to be counterfeited, and therefore he could gain nothing on such conviction. Should the defendant’s acquittal take place, it will not be pretended that Morgan can either gain or lose thereby.
But by the court.The "witness is within the policy of the rule of evidence, as laid down in 1 Term Pep. 296, 300, and as narrowed down in 3 Term Pep. 34, 36. Ho has given colour to the note by his indorsement, and shall not now be allowed to impeach or invalidate it. In the present aspect of the business, he cannot be received as a witness.
The court being adjourned, it was proved in the afternoon of the day, that Morgan had secured the payment of the 1470 dollars by a new note to Thomas Allibone the indorsee, who had delivered him up the instrument charged to be forged, with his indorsement thereon. Whereupon the court without any difficulty, admitted him to be sworn.
The jury after a long trial, convicted the defendant of the fifth count, and acquitted him of the other five counts in the indictment.
The defendant’s counsel afterwards moved in arrest of judgment, and insisted that no indictment would be good, which did not contain the proper terms of art. 2 Haw. c. 25, § 35. Here is no place or venue laid where the offence was committed, except as to the mere conspiracy, and that connected with the false color and pretence, which ought to have been set forth. 2 Stra. 1127. Some place must be shown, where the offence was committed. 2 Haw. c. 25, § 83. And in criminal cases, though the county be in the margin, yet the place where the fact is supposed to be done, must in the indictment be laid in com. prwdieto; aliter in civil cases. 3 Wins. 496. Exception may be taken to the want of a place, in *8arrest of judgment. 4 Black. Com. 375. There can be no latitude in laying a charge of this nature. A defective indictment is not aided by verdict. The statutes of jeofail do not extend to criminal prosecutions. 2 Burr. 1127. 2 H. PI. P. 0. 193.
It is not alleged, that the defendant of Langford Herring did any particular act at any place, to carry the conspiracy into execution ; nor that they knew that the note was forged, which was indispensibly necessary. In an action for keeping a dog used to bite, the scienter is held to be material. Indictment for selling as two chaldron of coals, a less quantity, was quashed on motion. 3 Burr. 1697.
The counsel for the commonwealth admitted, that if there was no venue, it might be objected, even after verdict. But they contended, 1st. That the conspiracy itself was an an indictable offence, though nothing be done in' prosecution of it, and the venue must be where the conspiracy was, not where the result of the conspiracy is put in execution. 1 Salk. 174. 1 Stra. 193 to 196. Leach’s Crown Cas. 38, 39.
2d. That upon a fair construction of the indictment, the whole offence laid in the fifth count, is stated to have been perpetrated in the city of Philadelphia. It is charged that on the 17th day of August 1793, the conspiracy was had at the city aforesaid, and in the conclusion, the words then and there, are applied to the counterfeited note. The city and the 17th day of August, are the unity of place and time, to which the whole count must refer.
In an indictment for a cheat, it is admitted, that the false tokens must be set forth ; but it is otherwise'in a conspiracy, which is an independent offence, and in itself indictable.
There are sufficient words in the indictment to show the defendant’s knowledge of the note being counterfeited, which they procured him to indorse.
The court gave no opinion on the motion in arrest of judgment, but continued the same under advisement.
The defendant afterwards indemnified Jacob Morgan fully, and the jury having recommended him as an object of mercy, when they delivered in their verdict, a nolle prosequi was entered on the indictment on the 20th March 1796, by the attorney general.