People v. Bennett

• Decision Date: 12 December 1899
• Citation: 122 Mich. 281,81 N.W. 117
• Court: Michigan Supreme Court
• Parties: PEOPLE v. BENNETT.

81 N.W. 117

122 Mich. 281

PEOPLE v. BENNETT.

Supreme Court of Michigan

December 12, 1899

Exceptions from circuit court, Allegan county; Philip Padgham, Judge.

Erasmus Bennett was convicted of uttering a forged note, and excepts. Reversed.

Charles N. Thew, Pros. Atty. (Fidus E. Fish, of counsel), for the people.

Rodgers McDonald & Minor, for defendant.

MONTGOMERY J.

The respondent was convicted of uttering a forged note signed by 12 residents of Allegan county. The note set out in the information reads as follows: '$400.00. Dorr, Mich Sept. 16th, 1897. Three years after date, we, or either of us, promise to pay to E. Bennett and Son, or bearer, four hundred dollars ($400.00), for value received, at 8% interest attorney's from date until paid, and 10% attorney's fees for collecting the same, to be included in any judgment on this note, without relief from valuation or appraisement laws. Julius Rewa. John Snyder. Fred Snyder. E. D. Bartz. Joseph Getzen. F. C. Gilbert. Gust Genther. Michael Burchardt. John Bieber. Klemp Rodenhesler. Henry Stein.' But three points are made which require discussion, as the remaining questions are subordinate ones, which will be sufficiently treated in dealing with the three following: (1) Was there a fatal variance between the instrument offered and the one set out? (2) Is the instrument set out a promissory note, within the meaning of the statute defining the instruments which are subject to forgery? Were the defendant's rights prejudiced by permitting proof of matter irrelevant to the issue, and tending to show that he may have been guilty of another offense, or at least of overreaching in obtaining the note in question.

1. As appears by the instrument above set out, one Klemp Rodenhesler appears to be one of the signers. The information so charged. The name corresponding to his on the instrument introduced appears to have been written in German. One Clemens Rotenhesler was called as a witness, and shown to have been one of the signers of the note. No proof appears to have been offered that the Geramn name attached to the note would, when properly translated, read as it was set out in the information. The practice was very loose. The information should have set out that the name was written in German, and have given its English equivalent. 9 Enc. Pl. & Prac. 574. Doubtless, under our statute of amendments (Comp. Laws 1897, � 11,922), the information is in this respect subject to amendment. See, People v. Henssler, 48 Mich. 49, 11 N.W. 804. But we refer to it, as the case must go back for retrial.

2. Is the instrument above set out a promissory note? Defendant's counsel contend that it is not, and cite Bank v. Purdy, 56 Mich. 6, 22 N.W. 93; Bank v Wheeler, 75 Mich. 546, 42 N.W. 963; Brewing Co. v. McKittrick, 86 Mich. 191, 48 N.W. 1086; Altman v. Rittershofer, 68 Mich. 287, 36 N.W. 74. These cases must be deemed decisive of the question. It is further contended, as this instrument is not a promissory note, and as the information counts on it as such, the case should be reversed, and the respondent discharged. We do not think this result should follow. The instrument set out at length is such a one as is the subject...