People v. Hatch ( 1912 )

MELVIN, J., dissenting.

I dissent. I think the court erred in refusing to admit in evidence the note signed by Mrs. Sage and paid by defendant, and I do not think that the error was waived by the failure of the defendant to assent to the admission of parts of the note only. I agree with the opinion prepared by Mr. Justice Hall, in which Mr. Presiding Justice Lennon concurred, wherein this matter is discussed as follows:—

“Appellant offered the note in evidence, and upon the objection of the district attorney the court sustained the objection. The defendant was thus denied the right to prove the direct evidence that a portion at least of the money which he was charged with embezzling had in fact been applied to the payment of an obligation of Mrs. Sage. Furthermore the other payments on this note tended to account for some of the money that the prosecution claimed and proved had been received by defendant as the agent of Mrs. Sage. The evidence of Mr. Knox showed that defendant had made payments on the instrument which was then exhibited to him in the amount of over five thousand dollars, and that over four thousand dollars of this was paid shortly after the receipt by defendant of the $4,100.55 which he was charged with fraudulently appropriating to his own use. But by the ruling of the court, made at the insistence of the district attorney, the defendant was prevented from proving that the payments were made to discharge an obligation of Mrs. Sage.

‘‘ This was a vital matter. The important fact to be established in regard to these payments was that they were made for the benefit of Mrs. Sage and in discharge of her debt. It is not for the court to say that, the offered evidence would not establish a completed defense. If it tended to meet and over come any portion of the evidence presented by the prosecution the defendant was entitled to have it placed before the jury. The ruling of the court deprived the defendant of the benefit of important and material evidence.

“The note, in connection with the evidence of payments made thereon by defendant, given by the witness Knox, directly tended to account for a portion of the four thousand one hundred dollars, as well as for other sums of money received by defendant for Mrs. Sage. The evidence of these payments was of practically no value without the introduction of the note. It was the note that would supply the important evidence that these payments were made to discharge an obligation of Mrs. Sage.

“It is thus manifest that the court erred in a vital matter to the prejudice of appellant in sustaining the objection of the district attorney to the introduction of the promissory note of Mrs. Sage.”

Rehearing denied.

Beatty, C. J., dissented from the order denying a rehearing.