Farmer v. State , 100 Ga. 41 ( 1896 )

Simmons, Chief Justice.

Farm'er was convicted of the offense of being a. conrmoncbealt 'and swindler, alleged to have- been committed by making false and fraudulent represenitaitions concerning bis wealth and commercial respectability and thus obtaining the goods of the prosecutor; and to the overruling of bis motion for a new trial be excepted.

1. It is complained that the court erred in this: Counsel for 'the State, wishing to obtain possession of a bill of sale-given by the accused to bis wife, and of a note and mortgage-executed by him to' another person, served upon her a subpoena duces tecum directing her to bring these papers into court; -and no response having been made, -obtained from, the court, over the objection of counsel for the accused, an. attachment requiring her to produce the papers or “make-answer under oath refusing to produce them on the ground ■that she was not compellable to- do so.” She made a response to 'the effect that the papers called for were in the possession of b-er attorney, and that she would not produce them if she had them. The court, over the objection of counsel f’or the accused, received the response and admitted secondary evidence as to> the Contents of the papers, bolding that 'the service of the subpoena duces tecum and the refusal of the wife of the accused to- produce the papers laid a sufficient foundation for the introduction- of such evidence. Before this evidence was received, counsel for the accused admitted iu his place that the papers referred to had been entrusted by tb© wife to' her attorney, and were then in the attorney’s possession. The rule that a wife is not competent, or compellable to testify on the trial of her husband would preclude the court from compelling the production of the papers from her by subpoena duces tecum or otherwise; and. they are equally protected while in the custody of her attorney, whose possession of them is to be regarded as her own. (Penal Code, §1011; Civil Code, §§5198, 5199; Wilkerson v. The State, 91 Ga. 729, 737 (2); Stanford v. Murphy, 63 Ga. 411.) Under such circumstances the papers are so. f ar inaccessible as that secondary evidence of their contents is admissible. "Whether the' court erred in compelling a response by the wife to the subpoena duces tecum, and in holding that her response could be considered for the purpose of laying the foundation for the introduction of secondary evidence’, is, however, of n'o consequence, since the fact stated by the wife in her response was covered by the. admission of counsel for the accused, above stated, which was of itself sufficient to show the inaccessibility of the' papers.

2. It is further complained that the court erred in admitting the testimony of -the witness Stovall, to the effect that, about the same time that the alleged misrepresentations, which were the basis of this prosecution were made by the' accused, similar representations were made by him to the-witness. The objection made to this testimony was that there was no connection between the representations of the' accused to Stovall, and those alleged'to have been made-by him to the prosecutor, the representations to Stovall not' having been communicated to the prosecutor when his firm extended credit to the accused. The testimony was offered and admitted as tending to illustrate the intent of the accused in the transaction for which-he was then being tried; and for this purpose we think it was properly received. While it is a general rule that upon the trial óf a person for a criminal offense, other and distinct criminal transactions cannot be given in evidence against him, yet, 'according to the weight of aitthordty, evidence of other representations or transactions may be received, as tending to' show motive or .intent, when the transactions are. so connected in time and so similar in their other relations that: the game motive may reasonably be imputed to all. See 1 Jones, Ev. §143, and eases cited; 1 Greenle'af, Ev. (15 ed.) §53 and notes; Wharton, Crim. Ev. §53; 1 Bishop, Few Grim. Proced. §§1126, 1127; 2 Id. §189. Justice Story states the principle thus: “In all cases where the guilt of the party depends upon the intent, purpose or design with which an act is dome, or upon his guilty knowledge, I understand it to be. a general rule that collateral facts may he examined into in which he 'bore a part, for the purpose of establishing a guilty intent. In short, whenever the intent or guilty knowledge of a party is a material ingredient in the issue of a case, these collateral facts, that is, other acts and declarations of a similar character tending to establish such intent or knowledge, are proper evidence. In many cases of fraud it would be otherwise impossible satisfactorily to establish the true nature and .character of the act.” (Bottomby v. United States, 1 Story’s Rep. 135.) A well considered case in which the question is discussed at length, and authorities bearing upon it reviewed, is that of Trogdon v. Commonwealth, 31 Grattan (Va.), 862. In that case it is said: “Upon a prosecution for obtaining goods by false pretenses the indictment must aver the fraudulent intent, and the commonwealth must prove it. It is 'the very gist of the offense.... It is not sufficient that the accused knowingly ■slates what is false. It must be shown 'that his intent was to defraud. Such intent is not a presumption of law, but a matter of fact for the jury. Being a secret operation of the mind it can only be ascertained by the 'acts and repre■sentations of the parity. A single act or representation in m'any cases would mot be decisive, especially where the accused has sustained a previous good character. But when it is shown that he made similar representations about the ■same time to other persons, and by means of snch representations obtained goods, all of which were false, the presumption is greatly strengthened that he intended to defraud.” See, among other cases on 'this subject: Regina v. Francis, 2 C. C. R. 128, 12 Cox’s Crim. Cases, 612; Wood v. United States, 16 Peters, 342; Commonwealth v. Jeffries, 7 Allen, 548; Commonwealth v. Eastman, 1 Cush. 189, 48 Am. Dec. 596; Commonwealth v. Coe, 115 Mass. 481; Mayer v. People, 80 N. Y. 364; People v. Shulman, Id. 373; State v. Walton, 114 N. C. 783; State v. Myers, 82 Mo. 558; State v. Bayne, 88 Mo. 604; State v. Rivers. 58 Iowa, 102; Rafferty v. The State, 91 Tenn. 655. See note to Strong v. The State, 44 Am. Rep. 292.

3. Eor the purpose of showing certain admissions by the-accused, counsel for the State offered, and the court over the objection of counsel for the accused admitted in evidence, extracts from a creditor’s petition against the accused, and portions of an. answer 'thereto, not sworn to nor signed by the defendant, hut signed by certain persons as-his attorneys. Pio evidence was offered tending show that these pen-sons were in fact his attorneys and filed the answer' by his direction, or that he was cognizant of the statements contained in it; and it was objected that it was illegal to-admit the same in evidence without proof that it was authorized by him. The court, in charging the jury, stated the purpose for which these portions of the answer were' admitted, and that it was for 'the jury to say what was shown by this evidence. The action of the court in allowing the-introduction of this matter, and in thus instructing the jury, is complained of in the motion for a new trial.. Under the ruling of 'this court in Lamar v. Pearre, 90 Ga. 377, statements contained in a petition, plea or answer filed in a civil case, and signed by counsel, though not verified or signed by the person apparent!}' represented by such-counsel, would he admissible ‘against him in the trial of another civil case to which such person was a party. That ruling, however, is not applicable to criminal cases. Admissions by agents or attorneys are not admissible in criminal cases in the sense in which they are admissible in civil. cases, Roscoe, Crim. Ev. 53; 3 Am. & Eng. Enc. of Law, 490. They should not be treated as evidence against the-accused unless shewn to have been authorized by him. The error o>f the court in this respect entitles the accused to a new trial. No canse for a neiw trial appears from 'any ■of the other grounds of the motion.

Judgment reversed,.