Lewis v. State
| Decision Date | 13 May 1976 |
| Docket Number | No. 1--1175A197,1--1175A197 |
| Citation | 169 Ind.App. 172,346 N.E.2d 754 |
| Parties | Henry Mack LEWIS, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Arthur Griffith, Evansvile, for defendant-appellant.
Theodore L. Sendak, Atty. Gen., Charles M. Russell, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
Defendant-appellant, Mack Henry Lewis (Lewis), was found guilty by a jury of uttering a forged check in violation of IC 1971, 35--1--124--1 (Burns Code Ed.). He now brings this appeal alleging error by the trial court in admitting certain exhibits into evidence, refusing Defendant's motion for directed verdict, and giving certain instructions to the jury. It is also alleged that the verdict is not sustained by sufficient evidence and is contrary to law.
We affirm.
The facts most favorable to the State are that sometime prior to August 20, 1974, an Evansville businessman, Donald Drew, discovered some of his business checks to be missing, among them #1997.
On August 21, 1974, at Day's Market in Evansville, Lewis attempted to cash a check made out to him, drawn on Mr. Drew's business account, and ostensibly with Mr. Drew's signature affixed thereon. Not having sufficient cash, the owner of the market, Mr. Cosby, referred Lewis to a nearby pharmacy. Mr. Cosby, being suspicious, also contacted Mr. Drew. As a result, the pharmacy was notified and Mr. Cosby drove to the pharmacy where he was able to write down the auto license number as Lewis was leaving.
In the meantime, Lewis had proceeded to the pharmacy and had presented the check to the cashier. Before cashing the check, the cashier photographed Lewis and the check. As Lewis was leaving the pharmacy, the telephone call from Day's Market was received, and the pharmacist pursued Lewis to his car and asked that he return to the pharmacy. Upon returning to the pharmacy, Lewis exchanged the money he had received for the check and departed. Lewis was subsequently arrested.
It is alleged that the trial court erred in admitting State's Exhibits #1 and #2 into evidence over Defendant's objections. Defendant's contention is that State's Exhibit #1, the photograph of Lewis and the check, should not have been admitted into evidence because the State had not given Lewis notice to produce the original check as should have been done by virtue of The State v. Atkins (1840), 5 Blackf. 458, and Armitage v. The State (1859), 13 Ind. 441. Whatever the inducement for such a requirement was in those decisions, we find no compelling reason for such strict adherence today.
There are essentially two purposes for attaching to an information the forged instrument or setting forth in the information the contents of the instrument. The first purpose is to permit a court to see the instrument or its contents to verify that it is one of those instruments, the false making or uttering of which is punishable by law. The State v. Atkins, supra. If it is, then a court may find probable cause to issue a warrant for arrest. The second purpose is to provide notice to a defendant of the nature of the charge against him. McGinnis v. The State (1865), 24 Ind. 500.
It is quite clear that parol evidence will be sufficient for both of the above purposes, as well as for conviction, if the State alleges that the instrument is lost, destroyed, or not produced by a defendant after notice to him to produce it. Armitage v. The State, supra; McGinnis v. The State, supra. We are left then with a question of the utility of requiring the State to give a defendant notice to produce an alleged forged instrument. As a practical matter, if such an instrument is in the hands of an accused, an information usually must be submitted to a court for purposes of getting a warrant before time would permit notice to and a reply from an accused. There is also a question of the wisdom of providing such an advance warning to an accused that a warrant is being sought for his arrest.
As to notice to a defendant of the nature of the charge against him, if an information describes with some specificity the subject instrument, that information should be sufficient notice to a defendant of the nature of the charge. A request by the State for the accused to produce the original instrument would add nothing to that notice.
Having determined that the State is not required to give an accused notice to produce an alleged forged instrument before parol evidence of its contents can be set forth in an information, we now must determine whether parol evidence will be admissible at trial where there has been no formal notice to produce by the State.
McGinnis v. The State, supra, was interpreted by the Indiana Supreme Court in Sparks v. State (1942), 220 Ind. 343, 42 N.E.2d 40, to stand for the proposition that 'secondary evidence of a document in the possession of a defendant is admissible in evidence even without a demand for production'. Such a view is particularly well suited to Indiana law today. Under our liberal discovery rules, a defendant is afforded an opportunity to apprise himself of the secondary evidence of an instrument that the State might have. He can avoid surprise, and he can be prepared to produce the original instrument if it is in his interest to do so. Discovery is typically a two-edged sword cutting for and against each party. We are cognizant, though, that the edge cutting for the State in a criminal prosecution is effectively blunted by the armor justly available to an accused in the form of his right not to be compelled to produce a written instrument, in his possession, to be used as evidence against him. Thus, there seems to be no justification, at least in criminal proceedings, in requiring the State to act out the futile formality of giving a defendant notice to produce the original instrument before secondary or parol evidence will be admissible. We find no error by the trial court in admitting State's Exhibit #1 into evidence.
State's Exhibit #2 was a sample signature of Mr. Drew. It was admitted into evidence, over objection, during...
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