Sherman v. People

Smith, J.: Tbe counsel for tbe plaintiff in error insists that tbe court below erred in refusing to instruct tbe jury to acquit as requested. Tbe evidence on tbe part of tbe prosecution tended to show that Sherman, who was a banker at Port Byron, by false pretenses induced the complainant to deposit currency in bis bank; that tbe money so deposited was drawn out by tbe complainant and paid back to him some weeks afterward; and that subsequently be deposited a draft for collection, tbe larger part of which was unpaid when tbe bank closed. On that state of facts, it was insisted by tbe counsel for tbe defendant that no offense was committed in respect to procuring tbe deposit of tbe currency. We think tbe motion made on [577] tbat ground was properly overruled. Tbe fact tbat tbe money deposited was paid back went to tbe question of intent; and if tbe jury were satisfied by tbe evidence tbat tbe deposit was induced by tbe false representations charged in tbe indictment, with intent to deceive and defraud, tbe offense was made out. Tbe payment may bave been made in tbe expectation tbat it would further tbe original fraudulent design, by leading on tbe complainant to make other deposits, partly on tbe faith of the original representations. We think, however, tbat tbe court erred in receiving evidence of the admissions of tbe defendant tbat bis bouse and lot in 'Water-town were incumbered by mortgage. Tbe existence of tbe incumbrance was a material fact for tbe prosecution to prove, and tbe best evidence was tbe mortgage itself, tbe record, or a certified copy of tbe record. 'Without. accounting for tbe absence of ■ these, secondary evidence was not admissible. Yerbal admissions of tbe defendant were no higher evidence than parol testimony of tbe contents of tbe mortgage. It seems to be tbe rule in this State tbat tbe admissions of a party are competent evidence, only when parol evidence of tbe fact sought to be shown by such admissions would be competent. In Welland Canal Company v. Hathaway (18 Wend., 180), it was held tbat evidence resting in records cannot be supplied by proof of admission of the party sought to be affected by such evidence, of tbe existence of tbe facts appearing by such records. To tbe same effect are Jenner v. Joliffe (6 Johns., 9) and Hasbrouch v. Weaver (10 id., 246). Tbe prosecuting attorney acknowledged tbe force of this rule and endeavored to comply with it by offering in evidence a certificate of tbe clerk of Jefferson county, tending to show tbe existence.of a mortgage on defendant’s bouse and lot in Watertown, but tbe certificate, not containing a copy of tbe whole of tbe mortgage, it was excluded. The district attorney then offered himself as a witness, and testified, under objection, that, in a certain conversation, tbe defendant said to him that be owned a bouse and lot in Watertown worth $40,000, which was incumbered by a mortgage of $20,000, given to trustees to secure bonds negotiated by the trustees. This, we think, was clearly inadmissible. Not only was it an attempt to prove á record by parol, but it did not profess' to be evidence of tbe whole of tbe record, and so was subject to tbe very objection upon which the clerk’s cer [578] tificate had been excluded. Moreover, the admission shows that the mortgage was special in its character, and the question whether it constituted an incumbrance on the property involved an inquiry as to its legal effect, for which purpose parol evidence of admissions is never admissible. We are also of the opinion that the testimony of the witness Sears, that the defendant said to him, in June, 1876, that he brought to Port Byron $50,000 in currency for banking purposes, was improperly received. It was admitted, undoubtedly, upon the ground that it was competent for the prosecution to prove other like acts of fraud, at or about the same time, as evidence of the intent with which the alleged representations to the complainant were made. The rule is not questioned, but the testimony of Sears tended to establish no act. It did not appear that he was induced by the defendant’s statements to do any thing, or that they were made for the purpose of inducing him to do any thing, or that any action whatever on his part was contemplated when the statements were made. In short, there is nothing in the testimony from which it can be inferred that the statements to Sears were made with a fraudulent intent, and consequently they do not throw light upon the quo cmimo. Por these reasons the conviction should be reversed, and a new trial ordered in the Court of Sessions of Cayuga, to which court the proceedings will be remitted. Muxlin, P. J., and Talcott, J., concurred. Ordered accordingly.