Brashears v. State

Miller, J., delivered the opinion of the Court. The indictment against the appellant contained two counts, the first for forging, and the second for uttering a forged promissory note with intent to defraud. . After a demurrer had been overruled, he pleaded not guilty, and upon trial the jury found him not guilty on the first but guilty on the second count. In the course of the trial he took two exceptions to the rulings of the Court, and these alone are brought up for review ■ by this appeal, and will be disposed of in their order. 1st.

The first exception presents the question whether by the testimony adduced to the Court, a sufficient foundation was laid for the introduction by the State of second ⁵⁶⁵ ary evidence of the contents of the note set out in the indictment. The rule of law upon the subject is the same in criminal as in civil cases. If the instrument be destroyed or lost, the party seeking to give secondary evidence of its contents, must give some evidence that the original once existed, and must then prove its destruction positively, or at least presumptively, as by showing that it has been thrown aside as useless, or he must establish its loss by proof that a search has been unsuccessfully made for it in the place or places where it was most likely to be found. What degree of diligence is necessary in the search cannot easily be defined, as each case must depend much on its own peculiar circumstances ; but the party is generally expected to show that he has in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him.

As the object of the proof is merely to establish a reasonable presumption of the loss of the instrument, and as this is a preliminary inquiry addressed to the discretion of the Judge, the party offering secondary evidence need not, on ordinary occasions, make a search for the original document, as u for stolen goods, nor be in a position to negative every possibility of its having been kept back. 1 Taylor on Ev., sec. 399; Roscoe’s Cr. Ev., 7-8; Wharton’s Cr. Ev., sec. 210; Roscoe’s Nisi Prius Ev., 6-7—8. That the note referred to in this indictment once existed is established beyond doubt.

The witnesses trace it substantially as follows: It was first in possession of Ryan as constable, and lie delivered it to Clingan, the foreman of the grand jury, at their session. Prom him it passed to Baker, one of the clerks, and from him to McCardle another clerk to the grand jury. McCardle had it in the pocket of his pants for some days, when he brought it to the grand jury room for the State’s attorney, and that ⁵⁶⁶ was the last he saw of it. Mr. Motter, the State’s attorney says, he got the note in the grand jury room from front of the foreman, and framed the indictment from it, and that hisd’ecollection is that he returned it to Olingan just before the grand jury adjourned, with a request to give .it to McCardle or Ryan, hut Olingan says he never received it from Motter, and McCardle and Ryan are both positive it was never returned to them.

By the weight of testimony, therefore, it was traced directly to Mr. Motter as the last person in possession of it, and he proves “that he has made search among his papers for the note,, hut has been unable to find it, and that the note cannot he found by him.” But besides this, Baker states that at the request of the State’s attorney he has searched in the pockets of the clothing he wore during the session of the grand jury, except in the. pockets of a white vest which has been washed since; that he also searched through an envelope where he always keeps papers other than those'concerning his own business, and has also looked through his own papers, the search occupying five minutes; that he never looked about his house anywhere, hut he is positive he did not have the note in his possession after he returned it to McCardle, and he does not know where it is. McCardle is also positive that he has not the note; that at the request of the State’s attorney he has looked through his private drawer, and the clothing he had on during the session of the grand jury, hut did not find it. Olingan says he has not the note; that he made search for it in his clothing, hut not among his papers; that he did not take any papers from the grand jury room, and did not take this note away, and did not recollect of any of the other grand jurors having the note. And Mr. Steiner, the clerk of the County Commissioners who has the key of the grand jury room, when the grand jury is not in session, testified that he has looked, since the grand jury adjourned, in the grand jury room, and has found no ⁵⁶⁷ note there.

Taking all this testimony together, we are all clearly of opinion it was quite sufficient to