People v. Thoms. PEOPLE v. THOMS. March, 1855. The possession by a wife, of fragments of bank notes, apparently cut for the purpose of making similar alterations to those which had been made in a note found on the person of her husband, is not, without further evidence of concert between them, competent evidence against the husband, on an indictment for having such altered note with intent to pass it.* The mere presumption of concurrence growing out of the conjugal relation is not sufficient to make the criminal conduct of the wife evidence against the husband. John W. Thoms, under an indictment for having in his possession, with intent to utter, an altered bank bill, upon arraignment in the New York general sessions, pleaded not guilty. Upon the trial, the district-attorney, having proved the finding of the altered bill upon defendant by the officer arresting him, and that no promises or threats were made to defendant, offered to give in evidence the statements or confessions of defendant, to the officer after the arrest, to which defendant's counsel objected, on the ground that they were made while under an excited state of mind, and therefore inadmissible; and being partly in German, a language not understood by the witness, must be excluded, as all the statements, if any, should be given in evidence. The court overruled the objections; and the officer testified that defendant stated that the bill "was one he had fixed that day." The district-attorney then offered in evidence five other notes, all of different banks, proved to have been dropped by defendant after arrest, and afterwards confessed by him to belong to him. Defendant's counsel objected to their admissibility, upon the ground that they were different in character from the note set out in the indictment. The objection was overruled, and the bills were received. The officer further testified, defendant stated to him, that "he did not think he had passed over three in a week, perhaps not more than one," and that "it was a great trouble for so little * See People v. Dibble, p. 518 of this vol. money." The district-attorney then offered to prove the result of a search of the person of the wife of defendant, after his arrest; to which defendant's counsel objected, on the ground that the search was not made in defendant's presence, and he could not be made criminally responsible for anything found in her possession. The court overruled the objection; and the officer testified that he "searched the defendant's wife and found in her possession the handkerchief now produced, having a large number of the ends of figures in the margin cut from bank bills now shown." The judge charged the jury substantially that the confessions of the prisoner, not having been obtained by promise or threats, were evidence properly submitted to their consideration. That the possession of the notes from which words and figures had been cut, and another altered note, as well as the figures and words cut from bank notes found in defendant's possession, were evidence from which the jury might infer that the prisoner had the note upon which the indictment was founded in his possession with an intent to pass it as true, for the purpose of fraud. The jury rendered a verdict of guilty. A writ of crror was taken by defendant to the supreme court at general term, and the conviction reversed, and a new trial ordered; from which judgment a writ of error was taken by plaintiff to this court. Jonas B. Phillips, for defendant in error.-I. The evidence of the prisoner's confession was improperly admitted: because of the danger of mistake from the misapprehension of the witness, the misuse of words, and the failure of the party to express his own meaning. 1 Greenl. § 214; 1 Archb. C. P. Waterman's Notes, p. 125, n. 1. The confession was neither deliberate nor voluntary, upon which alone the value of confessions depend. 1 Greenl. §§ 215, 219. "The whole of what the prisoner said on the subject at the time of making the confession should be received together." 1 Greenl. § 218; 1 Archb. C. P. Waterman's Notes, 124-5; Roscoe's Cr. Ev. 55; Respublica v. McCarl, 2 Dall. 86; People v. Johnson, 2 Wheeler Cr. Cas. 377. II. The court erred in admitting the evidence of what was found on the person of the prisoner's People v. Thoms. wife in the absence of the prisoner, no evidence whatever having been adduced to prove concert of action between them in reference to the charge in the indictment. The connection between the parties in the unlawful act should have been first established. 1 Greenl. Ev. § 111. A. Oakey Hall, district attorney, for plaintiff in error.-I. The confessions were correctly admitted by the court,-they being likely to be true, as the result of sudden remorse. "Urged by the promptings of truth and conscience," says 1 Greenl. § 215; Joy on Conf. A confession made in great agitation, but without threats or promises, was admitted. State v. Crank, 2 Bailey, 66, note to Roscoe, p. 41; see, also, Thornton's Case, Joy on Conf. p. 13; and 1 Moody C. C. R. 27; Joy on Conf. § 3, p. 34. All the confessions were given. "The rule does not exclude a confession where only a part of what the defendant said has been overheard." State v. Covington, 2 Bailey 569, note to Roscoe, p. 55. II. The notes were admissible to show motive or scienter. They were not different in character from the note averred in the indictment. See Rex v. Taverner, in note to Rex v. Smith, 4 Carr. & Payne, 411; Eng. Com. Law Rep. 449, Phil. ed. There is no distinction to be taken between scienter upon passing and upon possession with intent to pass. Roscoe's Cr. Ev. 92, 93; Archb. 127. BY THE COURT.-DENIO, J.-The fact that the prisoner had the altered note in his possession was fully proved; and the only question was as to his knowledge of its character, and his intention respecting it. The prosecution affirmed that he possessed it with the intent to pass it as true. If he was concerned in altering it from a lower denomination, and especially if he carried on to any extent the business of detaching the numerals from genuine bills and affixing them to the notes of a lower denomination, it would naturally be presumed that he had some object in doing so, and none which could be suggested would be so probable as that he intended to pass off the note which was found on him, which had been dealt with in the same way. Very strong evidence to show him engaged in this unlawful practice was given, independently of that which People v. Thoms. arose out of the search of the person of his wife; but the prosecution was not content to rest the case upon that evidence, but persisted, against the prisoner's objection, in showing that she had in her possession engraved figures, cut from genuine bills, suited to the commission of this species of forgery. If this evidence was incompetent, the supreme court was right in reversing the judgment, whatever may be thought of the strength of the case against the prisoner upon the other evidence. There was no other evidence of any concert between the prisoner and his wife, or that they were mutually engaged in altering bank bills, or that either of them had any knowledge of the facts which were proved against the other. Where two persons sustaining the relation of husband and wife are each found doing acts indicating criminal designs of the same nature, there are strong reasons for conjecturing that they are conspiring together; but it is mere conjecture, and not evidence, even presumptive of the fact. Now, the possession by the wife of these fragments of notes was enough, legally, to fix upon her the suspicion of criminal intention; but the presumption would not attach to the husband, unless we shall first suspect, that, from their domestic relation, one of them (and especially the female) would not engage in such an enterprise without the co-operation of the other. But such a suspicion, though natural enough, is quite too vague to be made the foundation of a criminal judgment. If this evidence should be held competent, I do not see but that the criminal conduct of the wife, in any matter which admitted of the participation of another, might always be given in evidence against the husband, upon the presumption of concurrence growing out of the conjugal relation. The evidence was clearly incompetent, and, without examining the other exceptions, we must hold that the judgment was erroneous, and that it was rightly reversed by the supreme court. The judgment of the supreme court should be affirmed. DEAN, J., was of opinion that inasmuch as the house of the prisoner, or his store, might have been searched, or any person in the house who might have been associated with him,-aud People ex rel. Van Rensselaer v. Van Alstyne. if anything had been found on such person, or in the house, which was connected with the bills found on the prisoner, it would have been evidence for the consideration of the jury,a fortiori, the possession of the wife who was cohabiting with the husband was competent evidence. A majority of the judges concurred in reversing the judg ment. PEOPLE ex. rel. VAN RENSSELAER V. VAN ALSTYNE. September, 1866. A road may be laid out or dedicated to the use of the public as a highway, though at one end it may have no outlet, or may terminate in a private way. On appeal from an order of commissioners of highways, refusing to lay out a highway, if the proceedings on which the order was made are regular on their face, the referees appointed by the county judge to hear the appeal are confined to the consideration of the case on its merits, and cannot hear evidence to impeach the certificate of the freeholders, or to falsify recitals in the order of reference. Under the act of 1847, c. 455, § 8, the the proper form of an appeal from a decision of highway commissioners is to the county judge, although it seems the county court have concurrent jurisdiction. On a common law certiorari, costs of an appeal to this court may be allowed to the prevailing party, as this is a special proceeding under section 3 of the Code.* Alexander Van Rensselaer and others, commissioners of highways of the town of Claverack, in Columbia county, having made an order refusing to lay out a highway, which Peter H. Kipp had applied for, Kipp appealed from their decision to * Explained in People ex rel. Spencer v. Fuller, 40 How. Pr. 35, as not overruled, on this point, by People ex rel. Latorre v. O'Brien, p. 552 of this volume, and People v. Board of Police, 39 N. Y. 506. The power to give costs seems now to be recognized, both in the court of appeals and in the commission. People v. Cassity, 46 N. Y. 46, 57; People v. Bull, Id. 57, 69; People v. Barker, 48 Id. 70, 84; People v. Ogdensburgh, Id. 390, 398. |