Black v. Wright. that he, the alleged obligor, acknowledged that he gave the bond; or that the signature is in the hand-writing, or that there were dealings between the parties, on which such a debt might probably have arisen; or the like. In fine, the presumption of execution from the proof of the hand writing of the witness cannot stand higher than dirict proof of execution by the subscribing witness himself; and, as in the latter case, though the bond goes to the jury, yet they are to judge of the credit of the witness according to all the evidence, so, in the former case, all the presumptions on both sides are for the consideration of the jury, and unless they preponderate in favor of the plaintiff, it ought to be found that he failed to establish the issue on his side. In like manner it was calculated to mislead the jury, to instruct them that the testimony of King and that relating to the bond for $71 74, and the bad character of the son, was the only evidence tending to prove the forgery.. It is true, that was all the affirmative evidence on that point. Indeed, but a part of that was of that kind of proof; for the evidence as to the son's character and the small bond, afforded only negative presumptions, that the testator did not execute the bond in suit. But the circumstances afforded other evidence of the like negative char. acter, relevant and material, which might have had much weight, had it been submitted to the jury in its proper connexion. It is classed by writers upon the law of evidence and presumptions, as 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. 3 Stark. Ev. 487. Hence when witnesses, for example, depose that the signature to a bond is not in the hand-writing of the person sued, and the obligee and alleged obligor live near each other and in the immediate vicinity of the place of Black . Wright. trial, and the latter is a man of extensive business, whose hand-writing is generally known, and the former calls no witness to the point, when he might so easily do so, if the signature were genuine, the omission affords the same kind of evidence against the deed, that the omission of the possessor of property, recently stolen, to account for his possession, does against him. It is true, that it is not applicable to the case of a marksman; but it is but one example of that species of evidence in reply, which the party might give, and, no doubt, would give, if his case were honest. For example, here the defendant gave evidence, that, three years after the date of the instrument sued or, the testator gave the plaintiff a bond, and shewed also the consideration on which it was founded, and that, without much indulgence, the plaintiff sued him on it. Why, then, did the plaintiff, if he at that time had the bond, which is now in suit, indulge the testator on it for six years? To meet that circumstance, the jury might well require the plaintiff to show by his clerk, or some member of his family at least, that in fact the paper was in his possession during that period; that there was a communication between him and the testator, and that the forbearance was extended at the latter's request; or that there had been at the date of the bond, or prior, a transaction on which the testator might have owed the The total omission of all such proof furnishes, in itself, presumptive evidence of no slight force. It was, therefore, erroneous to lay it down, that there was no evidence in the cause, but the isolated circumstances enumerated. The observations just made serve also to render it plain, that the rejected evidence of the dealings in 1838 and 1839 was relevant and proper. It was in the na. ture of connected evidence of the dealings between the parties for several years, and the frequency of settlements and speedy collection of the sums due; and thus-espec Black v. Wright. ially, in absence of all proof in reply-to render it less probable, that the plaintiff would have waited so long for the debt now demanded, if it existed as early as January 1838, and, thus, with the other circumstances, raise the inference, that the bond was not given then, nor, by conse quence, at anytime. Upon the same principle-and also for other reasonsthe evidence ought to have been received in relation to the other bonds held by the plaintiff, on which he had probably instituted other suits against the defendant. It is true, that evidence, simply, that the plaintiff or his subscribing witness had forged another bond on the testator, would be no proof that the present instrument is a forgery. But the object here was to connect the three instruments together, and to shew that the fabrication of the whole was one act. Keeping in mind, that the plaintiff withheld three bonds on the testator, payable to the plaintiff; that they were all in the handwriting of the same subscribing witness, a man of very bad character; that they were of different dates, so as to purport that they had been made at different times; it certainly would be adding great and just suspicion to the transaction, if it should appear, that they were all made at one and the same time, and the plaintiff should still omit to show, by any dealings at any time, a fair origin for either. That they were written on the same sheet of paper made at the same time, though bearing different dates, might appear by direct proof; but that is hardly to be looked for in such a case; and certainly inspection is a mode in which the jury may, to some extent, judge, as from the color of the ink, the kind of pen, the water marks on the paper, or the fitting together of the different pieces, as in the case of Indentures anciently, that the work was all done at once. If such was the fact, it increases the force of the presumptions from the defect of proof as to a consideration; as the greater the magnitude of the dealings, State v. Upchurch. the greater the likelihood, that they would be known and capable of proof; and, certainly, some reason ought to be given in explanation of the extraordinary circumstance, that, not withstanding the bonds were written and executed at the same time and on the same sheet of paper they should be dated differently, so as to purport to have arisen from different transactions. We must say, that, in our judgment, such evidence would have added greatly to the suspicions in the case, and was, therefore, fit to be laid before the jury, as tending to impair the presumption of execution, which arose from the attestation of the writer of the several instruments. PER CURIAM. Judgment reversed and venire de novo. THE STATE vs JOHN UPCHURCH. The Act of 1846, ch. 70, entitled "an Act to protect houses and enclosures from wilful injury," alters the Act of 1836, 1 Rev. Stat. ch. 347, so as to reduce the offence of burning a mill-house, &c., from a felony to a misdemeanor, and substitutes the punishment of fine and imprisonment for that of death. In this State, where one is indicted and tried as for a felony, yet the facts averred in the indictment do not support the charge of felony, but amount to a misdemeanor, the Court may give judgment for such misdemeanor. Where a defendant was convicted on an indictment for a felony and appealed from the judgment thereon to the Supreme Court, and the error assigned in this Court was, that the facts stated in the indictment did not amount to a felony, the Supreme Court, though it reverses the judgment for this error, yet will, (under the provisions of the Act establishing the Court) give directions to the Court below to give judgment for a misdemeanor, where it appears that is the judgment, which should have been there rendered. Appeal from the Superior Court of Law of Franklin County, at the Spring Term 1849, his Honor Judge SETTLE presiding. State v. Upchurch. The prisoner was convicted of arson, in feloniously, unlawfully, wilfully and maliciously burning a saw millhouse, the property of Malthus D. Freeman; and, when brought up for sentence, his counsel insisted, that no sentence could be passed on him, because, since the act of 1846, the offence was but a misdemeanor; and because the indictment charged it to be a felony, and, therefore, there could not be judgment on it as for a misdemeanor. The Court, however, proceeded to judgment of death, and the prisoner appealed. Allorney General, for the plaintiff. RUFFIN, C. J. The principal question arises on the first section of the Rev. Stat. ch. 34, and the act of 1846, ch. 70. The former enacts, "that no person, who shall be convicted of any wilful burning of any dwelling house, or any part thereof, or any barn then having grain or corn in the same, or store house, grist or saw mill-house, or any building erected for the purpose of manufacturing any article, shall be admitted to the benefit of clergy; but every person, so convicted, shall be excluded thereof and shall suffer death." The latter is entitled "an Act to protect houses and enclosures from wilful injury;" and it enacts, "that, if any person shall unlawfully and wilfully burn any uninhabited house, out house, or other building, or shall unlawfully and wilfully demolish, pull down, deface, or by other ways or means destroy, injure, or damage any dwelling house, or any uninhabited house, out house or other building, or shall unlawfully burn, &c., any fence, &c., he or she shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by fine or imprisonment or both, at the discretion of the Court, in which such conviction shall be had;" and it further en |