Rollins v. State

Hurt, Judge.

This is a conviction for forgery. The indictment charges the defendant with the forgery of a certain order purporting to be the act of George Eller. It is also alleged in the indictment that the order “is in the possession of defendant, or is lost, or destroyed, and that access to the same can not be had by them ” (the grand jury).

Upon the trial the' State, over the objection of defendant, proved by parol evidence the contents of the order. It is insisted by the appellant that before secondary evidence could be resorted to the defendant should have been notified to produce the original. But this is met by the Assistant Attorney General with the proposition that defendant was sufficiently notified by the indictment. The question, therefore, is: Was the allegation contained in the indictment a sufficient notice?

Mr. Greenleaf says: “When the instrument or writing is in the hands or power of the adverse party, there are, in general, except in the cases above mentioned, no means at law of compelling him to produce it; but the practice in such cases is to give him or his attorney a regular notice to produce the 'original. Not that, on proof of such notice, he is compellable to give evidence against himself, but to lay a foundation for the introduction of secondary evidence of the contents of the document or writing, by showing that the party has done all in his power to produce the original.” (1 Greenl. Ev., sec. 560.)

Nor does this case come within the exceptions noted by Mr. Greenleaf in section 561, which is as follows: “ There are three cases in which such notice to produce is not necessary. First, where the instrument to be produced, and that to be proved are duplicate originals; for in such case, the original being in the hands of the other party, it is in his power to contradict the duplicate original by producing the other if they vary; secondly, where the instrument to be proved is itself a notice, such as a notice to quit, or notice of the dishonor of a bill of exchange; and, thirdly, where, from the nature of the action, the defendant has notice that the plaintiff intends to charge him with possession of the instrument, as, for example, in trover for a bill of exchange. And the principle of the rule does not require notice to the adverse party to produce a paper belonging to a third person, of which he has fraudulently obtained possession; as where, after service of a supoena duces tecum, the adverse party had received the paper from the witness in fraud of the subpoena”

Opinion delivered April 17, 1886.

And upon this subject Mr. Bishop says: “Before evidence of ■the forgery will be admitted on the trial, the forged instrument must be produced, or its non-production justified from necessity, as by showing that it is lost or destroyed, or not within reach of the process of the court, or is in the possession of the defendant. And in the last instance, not in the others, reasonable notice must have been given him to produce it.” (2 Bish. Crim. Proc., sec. 433.)

But, as albove stated, it is insisted that such notice is contained in the indictment. This allegation, to-wit, that the order was in the possession of the defendant, or lost, or destroyed, and that access to the same could not be had, etc., was for another purpose—another very important and necessary purpose. The rules of pleading in forgery require that the indictment contain a transcript of the instrument forged. But, if it is lost or destroyed, or is in the hands of the person accused, this particularity may be dispensed-with on the fact being made thus to appear in the indictment; when, in such case, the substance only need be given. (1 Bish. Cr. Proc., sec. 553.)

Again, the indictment does not allege that the instrument was in the possession of defendant, but that it was in his possession, lost, or destroyed, and that it was not accessible to the grand jury. If this indictment had also called upon, or in some way notified defendant to produce the order upon the trial, or that secondary evidence would be used to prove its contents, this would have been sufficient. This, however, was not done. We believe, therefore, that the court erred in not sustaining the objections of the defendant to this character of evidence, he not having been notified of its intended use.

The judgment is reversed and the cause remanded.

Reversed and remanded.