United States v. Everest

Per Curiam,

Wilson, Justice.

Everest was indicted in the court below for larceny, in stealing the goods and chatties of Alexander McClintock, who was endorsed upon the indictment as private prosecutor. The defendant pleaded not guilty; and upon the trial in the court below, McClintock, the private prosecutor was produced, sworn, and offered as a witness by the district prosecutor, to which the defendant objected:

“ 1. Because the name of said witness was endorsed on said indictment as private prosecutor.
“ 2. Because the money in the said indictment, charged to have been stolen, is charged to have belonged at the time it was stolen to the said witness.”

*208Which objections were sustained by the court, and the testimony of said witness excluded. The excluding the testimony by the court for these two reasons, are the errors assigned, and the sufficiency of these grounds is submitted to this court. Does the fact that the witness is the'private prosecutor exclude his testimony? The private prosecutor is not necessarily bound for the costs, in the event of the acquittal of the defendant on the trial. The last statute enacted on this subject, and the one by which we are governed, provides: “ When any prosecution, instituted in the name of the United States, or of individuals, for breaking any laws of this territory, shall fail, the judge shall determine from the circumstances of the case, whether the prosecutor, the county, or the territory, shall pay the costs. ” Statutes, Vol. 1st act concerning costs, sec. 19. But if he were liable for the costs, that fact should go the credibility, and not to the competency, of the witness ; and so says the great current of authorities.

In reference to the second objection, the statute enacts, “ If any person or persons shall steal from any other person or persons ; or from the dwelling house, or other houses ; or from any boat or water craft of any person or persons, any money, goods, wares or merchandise, or any other personal property or thing whatsoever, he, she, or they, so offending, shall he deemed guilty of larceny, and, upon conviction thereof, shall for the first offence, restore to the owner, the thing or things stolen, and pay to him the value thereof; and if the thing stolen be not restored, shall pay to him, her or ¡hop, double the value thereof, and shall be fined in any sum not exceeding double the value of the thing stolen, and shall be imprisoned for a term, not exceeding five years, nor less than one year. ” Statutes, Yol. 1, act! defining crimes, sec. 35.

It is now well settled, that this also, from the necessity of the case, must go to the credibility, and not to the competency, of the witness.

The Supreme Court of Illinois, in the case of Noble vs. The People, (Breese’s Rep., page 29,) hold as follows:

“From necessity and public policy, the person on whom a forgery is committed must be admitted to prove it; although our statute gives such person one half of the judgment so recovered against the accused. If this were not the law forgeries would go unpunished. This interest must be left to his credit. ”

We see no such distinction between this case and a case of forgery, ás would admit the witness in one case and exclude him in the other. If forgeries might go unpunished, unless the injured party were admitted, so also might cases of larceny and robbery, where the person in*209jured could alone testify to the circumstances. In the case of the commonwealth vs. Moulton, 9th Mass. Rep. 30, it was decided that “ one from whom goods had been stolen, is a competent witness on the trial of the thief, although he is entitled by statute to satisfaction from the future earnings of the convict, and a recompense from the public treasury for the expense of prosecution. ” A person entitled to a reward upon the conviction of the defendant, is not thereby rendered incompetent to give evidence against him, Rex vs. Muscot, 10 Mod., 193. Whether the reward be given by statute, by proclamation, or by a private person. 1st Phil. Ev. 119, 127.

The prosecutor is in all cases to prove the offence. Peakes Ev. 153, 155. See Gilb. Ev. 123, even although he entitle himself to the restoration of his goods upon the conviction, or entitles him to costs by the conviction.

The judgment below is reversed.