People v. Swetland
| Decision Date | 18 October 1889 |
| Citation | 77 Mich. 53,43 N.W. 779 |
| Court | Michigan Supreme Court |
| Parties | PEOPLE v. SWETLAND. |
Exceptions from circuit court, Kalamazoo county; BUCK, Judge.
Jennie M. Swetland, convicted of uttering a forged instrument brings exceptions.
On the 25th day of July, 1885, the respondent bought of George W Parker a piece of land in Kalamazoo county. On the same day she executed a mortgage for $700 to him upon the said land. The theory of the prosecution in this case, as developed on the trial, was that the respondent or some one else forged a discharge of this mortgage, and that she put it on record, or caused it to be recorded, and afterwards used the abstract showing said mortgage to be discharged to effect two other lands,-one from D. T. Allen, and the other from Mrs. Amy E. Day. The respondent was tried and convicted in the Kalamazoo circuit court for uttering this forged discharge. The case is brought here on exceptions, before sentence. The respondent was charged with uttering and publishing "as true a certain false, forged, and counterfeited acquittance and discharge for money of a certain real-estate mortgage," and the alleged forged discharge is set out in full in the information.
It is contended that there was no evidence of uttering, as charged in the information. The evidence showed that either the respondent or her sister took the false discharge to the office of the register of deeds, and had it recorded, and took it away again. It is claimed that the mere taking of it to be recorded was not an uttering. That it certainly was not the uttering of it as an "acquittance and discharge for money." It is said the mortgage was collateral to the notes which represented the debt, and that these notes were still held by Parker, and the only effect of putting the discharge on record was to show the real estate apparently clear of the lien. There may be some ingenuity in this argument, but there is no merit in it. If this false discharge had been genuine, as it purported to be, it would have been an acquittance and discharge, not only of the lien upon the real estate, but of the notes as well, and would therefore have been an acquittance and discharge for money. It would have been the voucher or receipt for the payment of $700, the amount secured by the mortgage. But we think error was committed upon the trial. This discharge purported to be signed by George W. Parker, the mortgagee and to have been acknowledged before James H. Kinnane, an attorney and notary public at Kalamazoo, and witnessed by C. W. Swetland and M. A. Hascall. Parker testified that he never signed any such discharge, and Kinnane was quite certain that he never took any such acknowledgment. The discharge itself was not produced, nor was its absence fully accounted for. The record of the instrument was produced by the register of deeds, Mr. Simmons. He could not remember who left it for record, or who took it away, except that either the respondent or her sister brought it to his office, and the same person that brought it took it away. When the record of the discharge was offered in evidence, it was objected to by the defense, on the ground that it was secondary evidence, and that it did not yet appear that the original instrument was lost, and no notice to produce it had been given. Mr. Howard, of the prosecution, then said: "If you prefer the original discharge, we ask you to produce it here in court." Mr. Irish, for the defense: "We have received no notice to produce it." Mr. Howard. "I give you notice now." Mr. Irish. "We have nothing to say about the proposition, because it does not come in the proper form, or at the proper time." The court declined to pass upon the question finally at this time, but admitted the record of the instrument, as he stated, pro forma. Upon other evidence being introduced, the record was permitted to stand in lieu of the original instrument.
The counsel for the people in this court claim that this record under the statutes of this state, was original evidence, and could be used as such, without reference to the original; that it was neither necessary to produce the original false discharge, nor account for its loss. See How. St. � 5685. We do not think this statute applies where the question of the forgery of the original instrument is in issue either in a criminal or civil suit. Where the main issue is whether a deed, mortgage, or discharge of mortgage has been forged, the original instrument is the best evidence, and ought to be produced, if it can be. But it is further claimed by the counsel for the people that, if this be so, when the original discharge was traced into the hands of the respondent it was sufficient; that the instrument was then satisfactorily accounted for, and that no notice to produce it was necessary; that such a notice would be, in effect, compelling the respondent to give evidence against herself. We agree with counsel that when an instrument claimed to be forged is last shown in the hands of the person accused of forging or uttering it, then secondary evidence may be given of its contents, and without notice to the accused to produce it. But it never became by any means certain in this case that it was last in the hands of respondent. The proof showed it to be quite as likely in the hands of her sister as herself. No attempt appears to have been made to find the original instrument, or to secure the testimony of the sister, whose name does not appear in the record. Another thing. It is the duty of the prosecuting attorney to furnish all the evidence within his power bearing upon the issue of guilt or innocence, in relation to the main issue, or to give some good excuse for not doing so. This rule has been frequently applied to the eye-witnesses of a transaction, unless the number were so great as to make the testimony merely cumulative. But in this case the main issue was whether or not this discharge was a false one,-a forgery. The uttering of it, unless it were forged, could not be a crime. There were the names of four persons attached to this instrument,-the alleged maker, Parker; the notary, Kinnane; and two witnesses, who were necessary, if it was a valid discharge and to be recorded, M. A. Hascall and C. W. Swetland. They were eye-witnesses of the execution of this paper, if it was genuine; they were all material witnesses as to its truth or falsity. Parker and Kinnane were sworn, but no mention is made in the record of the two witnesses save as their names appear upon the record of the discharge as being witnesses to its execution by Parker. Their names were not put upon the information, and there is no showing made why they were not called as witnesses. It is not claimed that these names are fictitious, and that no such persons are in existence, or do not live in Kalamazoo. It is very clear to my mind that, in the absence of this original discharge, it was the duty of the prosecuting attorney, under the repeated decisions of this court, to bring the four persons, and all of them, if they could be found, into court as witnesses in behalf of the people. As this case stands upon the record before us, the falsity of this discharge ...
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