State v. Hildreth.

be inferred, without other evidence, that the prisoner, on the other side of the stack and further off, saw the knife and immediately knew the extremity to which the assailant would go with it? Upon these grounds the Court deems the conviction erroneous, and directs a venire de

novo.

As the case may be brought to another trial upon the allegation of express malice and preconcert between the brothers, it seems proper to dispose of a question of evidence, which arose on the former trial and might possibly be made on another. The point was this. The prisoner offered to prove by his sister, that, after dark, on the night of the homicide, she heard Robert and David in conversation near their father's, and about three or four miles from Taylor's; and that, before they perceived her, and when the prisoner had no reason to think he was overheard, she heard the prisoner say to Robert, "You ought not to have done so," and that, from his voice, she knew that he was crying. The Court rejected the evidence. We concur in the decision. The general rule is, that a person's own declarations are not admissible for him. The rule is not founded on the idea, that they would never contribute to the ascertainment of truth; for, very often, they might be entirely satisfactory. But there is so much danger, if they were received, that they would most commonly consist of falsehoods, fabricated for the occasion, and so would mislead much oftener than they would enlighten, that it was found indispensable, as a part of the law of evidence, to reject them altogether, except under a few peculiar circumstances. This case does not fall within any established exception. It is impossible to ascertain, whether the prisoner had or had not perceived his sister; or whether he had no reason to believe that he was over-heard by her or some other member of the family, or some one else; or whether his tears were sincere or feigned. It was merely a declaration, subsequent

Black v. Wright.

to the event alluded to-if the allusion was to this occurrence and not forming part of the transaction; and, therefore, the objections, on which the general rule rests, apply with full force against its admissibility.

PER CURIAM. This opinion ordered to be certified to the Court below, that they may proceed accordingly.

PLEASANT BLACK vs. LABAN WRIGHT, EX'OR, &c.

Proof of the hand writing of a deceased subscribing witness to a bond is not, strictly, prima facie evidence of the execution of the bond, though it will authorize the reading of the instrument to the jury. But the jury must weigh this, together with the other circumstances given in evidence, and, from the whole, determine whether the alleged instrument was executed or not.

It is among the strongest circumstantial proofs against a person, that he omits to give evidence to repel circumstances of suspicion against him, which he would have it in his power to give, if those circumstances of suspicion were unfounded.

Appeal from the Superior Court of Law of Rockingham County, at the Spring Term 1849, his Honor Judge Dick presiding.

This is an action of debt, commenced January 27th 1844, on a bond to the plaintiff for $111, dated January 11th 1838, and payable one day after date. Plea, non est factum.

On the trial the plaintiff produced the instrument, which purported to be executed by the testator by making his mark, and to be attested by John Wall, junior, a

Black v. Wright.

son of the testator; and he proved the death of the subscribing witness and his handwriting.

The defence was, that the alleged bond was a forgery. In support thereof the defendant gave evidence, that the instrument was all in the handwriting of the subscribing witness, John Wall, junior, and that he was a man of bad character, as early as 1838, and had the reputation of being a gambler, swindler, and passer of counterfeit money, and was unworthy of credit. The defendant also gave evidence, that in April 1841, his testator gave to the plaintiff, on dealings between them, a bond for $71 74, and that in May 1842, the plaintiff brought a warrant thereon and took judgment against the obligor, who staid it, and died in August following. The defendant also gave evidence that his testator could not write, but was a marksman; and he called one King as a witness, who stated, that, for the last twenty years of the testator's life, he, the witness, had done the most of his business for him, such as writing and making settlements for him, and had often seen the testator make his mark to bonds and other instruments, so that he believed that he could distinguish it from the marks of other persons; and he deposed, that, in his opinion, the mark of the alleged bond was not that of the testator.

The defendant offered further to give evidence, that the plaintiff had a book account against the testator for dealings commencing in September 1838 and ending in April 1839, and that, at the latter day, the testator paid it, and took the plaintiff's receipt thereon. But the Court rejected the evidence.

The defendant offered further to give evidence, that Wall, junior, was dissatisfied with his father's will. But the Court rejected this also.

The defendant then offered further to give evidence, that the plaintiff had two other instruments, purporting

Black v. Wright.

to be bonds given to him by the testator, and to be wit nessed by John Wall, junior, bearing different dates from that sued on in this action and subsequent thereto; and that they were all in the hand-writing of John Wall, jr.: And the defendant alleged that, in fact, the three instruments were written by the said John Wall, junior, upon the same sheet of paper and at the same time, and that the same would so appear upon inspection of the instru ments; and to that end the defendant offered the other two alleged bonds in evidence. But the Court refused to receive any part of this evidence.

The plaintiff then gave evidence, that John Wall, the elder, had said that his son, John, was running him in debt and would ruin him, if he did not stop.

The Court instructed the jury, that the plaintiff had made out a prima facie case, by proving the death of the subscribing witness and his hand-writing, which entitled him to a verdict, unless they were satisfied, that the bond was a forgery: and that the only evidence tending to prove the forgery was the testimony of King, and that relating to the bond for $71 74, and the bad character of John Wall, junior.

The jury found for the plaintiff, and the defendant appealed from the judgment.

No counsel for the plaintiff.

J. T. Morehead, for the defendant.

RUFFIN, C. J. venire de novo.

The Court thinks there ought to be a We are not satisfied with the instructions given to the jury on the case made by the evidence, which went to them, and we are also of opinion, that pro per evidence was excluded.

Although proof of the signature of a dead subscribing witness is sufficient to allow the instrument to go to the jury, yet, where there is also evidence tending to disprove

Black v. Wright.

the execution of the instrument, we think it is not correct to say, that the evidence of the hand writing amounts to prima facie proof of the plaintiff's case: that is, as de fined here to the jury, such as entitled the plaintiff to a verdict, unless the jury should be satisfied by the evidence on the other side, that the instrument was a forgery. That is changing the onus of proof improperly, as it seems to us; for, in such a case, it must be a question for the jury to determine, according to the weight of circumstances on each side, whether in fact the instrument was or was not executed. It is to be remarked, that, there being no direct proof on either side, as to the execution, it is purely a question of circumstantial proof. The evidence of execution from the proof of the hand-writing of the attesting witness is nothing more than a presumption, that what the dead man witnessed was executed. It is so commonly true, that the law allows it to be evidence to the jury, on which they may find the fact. But it is not conclusive; nor has it, that we are aware of, any such peculiar virtue, as to oblige the jury to find according to the probability it raises againt opposing probabilities, unless the latter be of such a character as to leave no doubt with the jury to satisfy them, that, in fact, the person, whose bond it purports to be, did not execute it. In such a case, as in others, the onus as to the execution is on the party setting up the deed; and, although he is entitled in law to read the paper to the jury, upon proof of the signature of the witness, yet there may be suspicious circumstances shewn on the other side, which may prevent the jury from being satisfied with the evidence of the hand-writing of the witness, by itself, as establishing the execution: a thing to be done by the plaintiff, before he can entitle himself to a verdict. Hence, in such cases of suspicion, the plaintiff generally resorts to other evidence, in support of the presumption from the hand-writing of the witness such as that he was a man of fair standing;