Territory v. Alohikea ( 1918 )

OPINION OF THE COURT BY

EDINGS, J.

The defendant was tried in the circuit court of the second circuit of this Territory under an indictment charging him with gross cheat and was convicted of that offense. The case comes to this court on exceptions to the jurisdiction of the court, the introduction of evidence and the verdict. The indictment charges that the defendant “did designedly by false pretenses and with intent to- defraud, obtain from another to wit, Emily Kaailaau Puleloa, money of the value of to wit, $170'.00.”

Defendant’s exception numbered two is to the court’s overruling defendant’s objection to the introduction of a certain check. (Prosecution’s Exhibit one.) On the trial the prosecuting witness testified as follows: “I sent to him (defendant) $170.” “When I sent that money to him, I do not know whether he got it' or not.” “I sent a hank check.” “Ah Fat’s check.” “I paid Ah Fat the money and he gave me the check.” “I sent the check myself to Alohikea.” The witness (for the prosecution) Ah Fat testified as follows: “Question. How, this check, I will ask you whether or not this check came hack to yon through the bank as having been paid? Answer. Yes,” whereupon the check was offered in evidence by the prosecution and admitted by the court over the defendant’s objection. The check in question is as folloAVS: “Wailuku, Maui, T. H. May, 1, 1917. No. 216 The First National Bank of Wailuku, Pay to the order of Alfred Alohikea $170.00' One Hundred Seventy Dollars S. Akfat.” Stamped “Bank of HaAvaii Coll. No. 8725 Honolulu, T. H.” “Pay to the order of yourselves The Bank of HaAvaii, Ltd., F. B. Damon, Cashier,” and is indorsed “Alfred Alohikea.” There is not a particle of evidence to show that the defendant or his agent or servant, or any one authorized or designated by him, either directly or constructively, received this check or the money for which it' Avas drawn, and while the mailing of a letter, postage prepaid, raises a presumption of receipt by the addressee, there is not even any evidence to show that the check was mailed. There can be no question but that the indorsement on this check is an essential element of the crime and on a criminal prosecution the burden is on the prosecution to prove beyond a reasonable doubt, by competent evidence, every essential ingredient of the crime charged. The general rule on the subject of proving priA’ate writings is that before they are receivable in evidence their due and valid execution or their genuineness and authority must be established. 17 Cyc. 425. This rule has repeatedly been applied not only to deeds, but to checks, notes and various other private writings. “Indorsements upon the back of Avritten instruments are independent Avritings and can be read in evidence only after proof made that- they are signed by the party sought to be charged.” Turrell v. Morgan, 7 Minn. 290. “The regular and usual evidence of the transfer by indorsement of a check or negotiable note is by proof of the handwriting of the indorser.” Smith v. Prescott, 17 Me. 277. “If the indorsement is not proved the note is inadmissible.” Youngs v. Bell, 4 Cal. 201. “In order to render instruments, checks, admissible in evidence, their execution and the indorsements thereon, unless admitted, must be established by proof.” Sloan v. Fist, 53 Neb. 691. “In an action on a negotiable note the.admission of the indorsement of the payee in evidence, without proof of its authenticity, is error.” Hugumin v. Hinds, 71 S. W. 479. “The general rule is that a document, purporting to bear the signature of a litigant, is not admissible in evidence against him unless the signature be proved or admitted.” State v. Maddox, 73 So. 783. “An instrument purporting to be written by defendant is not admissible against him until it is shown to be in his handwriting.” State v. Grant, 74 Mo. 33.

E. R. Benins, County Attorney of Maui, for the Territory. Enos Vincent, for defendant.

As this check was the sole evidence relied upon by the prosecution to establish the receipt of the money by defendant his conviction on the charge against him was erroneous.

The exception is sustained and as it disposes of the case we deem it unnecessary to discuss the remaining ones.

The cause is remanded to the circuit court for a new trial.