State v. . Wilkerson

Smith, C. J., (after stating the case). 1. The first exception is to the admission of proof of the contents of the several orders issued to the defendant for the pauper’s support. The extent of the general rule, which requires the production of a written instrument to prove its contents, and admits of secondary evidence when it is lost or destroyed, is often misconceived. The rule does not apply to eases where the writing comes up on a collateral inquiry and a party is not expected to be prepared to produce it. Mr. Justice Rodman says, in Pollock v. Andrews, 68 N. C., 50, that “the exceptions are more numerous where the question is only a collateral one, as in this case. I find it decided that one party may prove the admission of the opposite party that he had a lease, note,” &c. 1 Greenl. Ev., §97. He also says: “Where the writing is in possession of *700 the other party, who refuses to produce it, secondary evidence of its contents may be given, even when the contents are directly in issue.” In the present case the papers are traced with the defendant’s possession, and the contents are material only as showing their nature and value. The essence of the charge is the fraudulent practices and pretences by which the defendant obtained them. Moreover, the defendant admitted that he got the county orders and the substance of what they contained. It would not be necessary, in an indictment for stealing bank notes, to have the notes present, nor would it be, in our opinion, necessary if the larceny were of a bond or note. The contents are material only as showing the nature of the instrument, and are not drawn in controversy in the sense of the rule requiring the production of the papers themselves. 2. It is insisted, and so the Court was asked to charge, that there was no evidence to sustain the averment that any false or fraudulent representations were made to the County Commissioners, and that, in order to a conviction, this proof was indispensible. The instruction was that, “if the jury believed, beyond a reasonable doubt, that the defendant fraudulently, designedly, knowingly and falsely represented to the Board of County Commissioners of Granville, whether such representation be in writing, or in words, or in acts, that Sallie Eastwood was a resident and pauper of Granville, when, in truth and in fact, she was not a resident and pauper, and this was known to him, and that by means thereof he obtained the order, he is guilty.” The only defect imputed to the charge in this connection is, that it was left to the jury to find the alleged false representations to the board, when there was no evidence of them. The defendant said, in his conversation with the witness Smith, that he “got the orders issued” for the pauper’s support, and “got the money.” This is certainly some evi- *701 clence, in the absence of any other agency, of his instrumentality in having the pauper placed on the list, of the orders directing payment to him, and of his being the only person to whom they issued. Now, originally, this was right, for then the facts did warrant the order for her allowance. This being so, after her removal, when she ceased to he entitled to it, every fresh application was, in fact and effect, a reaffirmation of her continuing rights as a pauper, and an act as expressive and significant as would be words to the same effect. This is plainly the import of what the defendant said to the witness, who issued the last order, when told of the reported death of the pauper, thát if dead he did not know it, and in consequence of such statement the order was issued by the agent of the board, and in the name of the board, and received by the defendant. The fraud then was perpetrated in the implication from the application that the pauper continued to be entitled to her allowance. 3. The motion in arrest of judgment must also be.overruled. The allegation that an order was obtained from the Commissioners for six dollars sufficiently describes the instrument as an order or warrant drawn by their officer upon the County Treasurer — the appropriate method of disbursing the public moneys, (The Code, §777,) so that all the elements are involved in the charge necessary in describing the instrument unlawfully obtained. A further objection is made, in that the statute speaks of the obtaining money, &c., by false pretences, from “any person or corporation,” and that the county is the corporation, not the Board of Commissioners. We do not perceive the force of the argument. The statute uses words that cover the case, whether the board be person or persons, for the singular number includes the plural, (sec. 3765, par. 1,) or a corporation. But the boards are county agents, and the county sues and is sued in their name. Section 704. And it acts by and through them. Sections 705 and following. *702 The county warrant is not entirely like a bill of exchange in the relations it creates between independent parties. It is but a mandate from one officer to another to pay a third person, and as such is but evidence of a debt and may be recalled. Abernathy v. Phifer, 84 N. C., 711. There is no error, and the judgment must be affirmed. Affirmed.