People v. Cotton
| Decision Date | 09 June 1911 |
| Citation | 95 N.E. 283,250 Ill. 338 |
| Parties | PEOPLE v. COTTON. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Peoria County; Leslie D. Puterbaugh, Judge.
J. Allen Cotton was convicted of forgery of a chattel mortgage, and he appeals. Affirmed.Sucher & McNemar (Dailey & Miller, of counsel), for plaintiff in error.
W. H. Stead, Atty. Gen., Robert Scholes, State's Atty., and Fred H. Hand (Harry E. Pratt, of counsel), for the People.
The plaintiff in error, J. Allen Cotton, was found guilty by a jury in the circuit court of Peoria county of the forgery of a chattel mortgage by adding to the property therein described and mortgaged the words and figure ‘1 Singer sewing machine,’ with intent to prejudice, damage, and defraud the mortgagors, Grant Mitchell and Dora Mitchell, his wife. The court overruled motions for a new trial and in arrest of judgment, and pronounced sentence in accordance with the verdict.
The mortgage was given to secure rent of a house of the defendant occupied by the mortgagors, and one of the mortgagors, Grant Mitchell, died before the trial. Dora Mitchell testified that the figure and words ‘1 Singer sewing machine’ were not in the chattel mortgage when she signed it, and that the sewing machine was her own property and of the value of $60. The mortgagors acknowledged the mortgage before John Schofield, a justice of the peace, who entered the mortgaged property on his docket, and the justice and one Richard H. Radley, who received the docket from the justice, testified that the figure and words in question did not appear on the docket. The defendant and Henry Gibson testified that the mortgage was made out in the office of the justice of the peace; that the writing in the printed blank was done by the defendant; that he had a list of the articles to be mortgaged on the inside cover of a small receipt book, including the sewing machine as the last item; that Gibson read off the list of articles, and after the mortgage was completed they checked the list and found the Singer sewing machine had been omitted; and that defendant then wrote the figure and words in the chattel mortgage following the description of the other property. The justice said that he thought the sewing machine was mentioned between the defendant and Gibson, but his impression was that the defendant told Gibson he did not want the machine and that he had enough without it. A witness testified that Dora Mitchell told him that she said the sewing machine was not on the chattel mortgage to save herself, because she had mortgaged the goods to another person, but she denied that she made any such statement. Another witness testified that after a fire which occurred in the house he saw the defendant look toward the sewing machine and take a book with a wine-colored or brown leather back and write something on it.
[1] It is first contended that the indictment was insufficient for want of an averment that the writing was made without lawful authority. The indictment was in the language of the statute and the language was such as to be readily understood, which was sufficient. It alleged that the defendant falsely and feloniously altered and changed the chattel mortgage, which necessarily included the element of a want of lawful authority.
[2][3] The next proposition of counsel is that the court erred in permitting the justice and the other witness to testify that the words and figure alleged to have been forged did not appear on the justice's docket. The docket had been lost and the entry had been copied as a part of the evidence taken before the master in chancery. The argument is that the people should have proved the contents of the docket by the copy, which was not a certified copy. Where records are lost or destroyed, their contents may be proved by verbal testimony, like any other writing. Gage v. Schroder, 73 Ill. 44;Ashley v. Johnson, 74 Ill. 392. The only purpose of the evidence was to prove that the figure and words were not on the docket and not to prove what was on it, and for that purpose a copy of the entry would not have been a higher class of evidence than the testimony of witnesses who had examined the docket. The defendant wanted to have the copy used because the mortgage described, among other things, ‘1 cooking stove and cooking utensils,’ while the docket entry was ‘1 cooking stove and utensils,’ which, it is said, would have shown a want of accuracy on the part of the justice. The defendant offered in evidence the copy and had the benefit of any inference arising from the discrepancy.
[4] It is next contended that the judgment ought to be reversed on account of improper conduct by the state's attorney in the examination of A. J. Saunders, a witness called on behalf of the people. The state's attorney did nothing improper, and the real complaint is against the rulings of the court. The witness had testified touching the matter before and developed an unusual and remarkable forgetfulness and lapse of memory, and the court permitted the state's attorney to call the attention of the witness to his former testimony for the purpose of refreshing his recollection. If a witness gives testimony different from previous statements, so that his testimony is a matter of surprise to the party calling him, the party may refresh his memory by calling his attention to the former statement, either to refresh his memory or awaken his conscience. Chicago City Railway Co. v. Gregory, 221 Ill. 591, 77 N. E. 1112;People v. Lukoszus, 242 Ill. 101, 89 N. E. 749. We see no reason why the same rule should not apply where a witness claims that his mind has become an entire blank concerning matters about which he has previously testified. The permission to ask such...
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... ... This instruction was properly given, as the jury could find the defendant guilty of manslaughter under an indictment for murder, as was done in the second trial of this case. The giving of such an instruction has heretofore received the approval of this court. People v. Cotton, 250 Ill. 338, 95 N. E. 283;People v. Crawford, 278 Ill. 134,155 N. E. 901. Defendant further charges that the court erred in refusing its instructions numbered 1, 2, 3, and 4. The first three were instructions on reasonable doubt, and the jury were fully instructed on this same subject by ... ...
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