People v. Cline

44 Mich. 290 | Mich. | 1880

Marston, C. J.

We are of opinion that the information filed in this case was not fatally defective within the ruling of Enders v. The People 20 Mich. 240. In this case the false pretenses are fully set forth, and the information shows an assignment of the mortgage direct to the parties injured, and alleges that by means of said false pretenses Cline and Ellis obtained from Winsor and Carrington, in exchange for said paper writings, the goods, etc. The information in other respects contains the usual formal allegations. It is thus, we think, sufficiently alleged, and appears from the allegations, that the false representations were made to induce Winsor and Carrington to purchase the mortgage referred to, and that in reliance upon the statements and representations made they did purchase the same and parted with their property therefor. It is, we think, clear that they relied upon the statements and representations made, and parted with their property upon the strength thereof. and of the assignment, or what purported to be the assignment to them of the mortgage. It is also urged that there was no evidence in the case tending to show that any of the representations alleged were made by defendant Ellis, and that he was therefore entitled to an acquittal.

If it appeared by the bill of exceptions that all the evidence tending to show Ellis’ connection with the matter was set forth therein, the view taken would be correct. We cannot go outside of the bill of exceptions and examine the printed testimony in order to ascertain what the facts were, as the evidence is not made a part of the bill.

It does not appear that Ellis was present at the time the false representations were made, and the trade consummated, or that he had any knowledge thereof, or that such was the design or intention of respondents in preparing these papers— if they did — if that would be sufficient. The fact that he was present afterwards, when Cline received a part of the consideration, and that Cline gave Ellis a part thereof, would not be sufficient, even if Ellis then had full knowledge of the representations made by Cline, which does not appear. The evidence set forth in the bill of exceptions clearly tends to show, at least in some parts, whether complete of not we need not now determine, that an offense was jointly committed by these respondents but not the one alleged and for which they were tried.

We must therefore assume that other and necessary evidence was given to connect Ellis with the representations made. If there was not, he would be entitled to his discharge.

Charles Flowers, an expert in handwriting, was examined. He compared the signatures to the assignment and the indorsement on the note with the writing in the body of the mortgage, and compared the signatures of James H. Warner to the assignment, and the indorsement of James H. Warner on the note, with the writing in the body of the mortgage, and testified that all were in the same handwriting. Similar testimony as to the other signatures was given by this witness, and also that the signatures appeared like forged hands.

"What tendency this evidence had to connect the respondents with the transaction we are not advised. It is true these papers were in evidence, hut we do not understand that any part of the same was admitted, or appeared beyond dispute to have been the handwriting of either of the respondents, so that the same could be taken as a basis for comparison. Admitting the fact that these instruments and the ■signatures thereto were in the handwriting of one or two persons, would not necessarily tend to connect the respondents therewith. Proof that the body of the instrument and signatures were in the same handwriting would be a link in the ■chain, which, with farther evidence to connect the respondents, one or both, therewith, would become material. It could not however be argued or inferred that the signature was written by the respondent, because it resembled the handwriting in the body of the instrument, unless it appeared that the handwriting in the body was actually his. The mere fact alone that the paper was already in evidence upon some other branch of the case, would not be sufficient to connect the respondents with the execution thereof.

A question was raised as to the sufficiency of the proof that one Beeson did not sign the mortgage. It was shown that Cline had represented that Beeson, the purported mortgagor, “ lived somewhere in the central part of the State,” and evidence was introduced “tending to show that Strother M. Beeson (the name of the mortgagor) formerly lived at Niles, and died December 30th, 1$78, and that the signature to the note and mortgage was not his.” If it was necessary to^prove that the person whose name purported to he signed as mortgagor did not in fact sign the same, it could only be upon the assumption that he was the owner of the land, or possibly that a particular person of that name had been represented as owner and the person who sigued. Neither appears to have been shown in this case. There was the representation that Strother M, Beeson “ lived somewhere in the central part of the State,” and that he (Cline) knew Beeson had made the mortgage. There must be very great difference in the weight of testimony upon the question of identity, based upon the identity of names and residence only. Some names are very common, and where the residence is fixed in a city or old-settled portion of the country, without any distinct place of residence being pointed out, or some other means of identification, the proof would be too uncertain where the liberty of a citizen was at stake.

We are also of the opinion that the prosecuting attorney was disqualified from conducting the prosecution in this case. It distinctly appeared that the complaining witness was a brother of the prosecuting attorney. He testified “ that he arranged with the prosecuting attorney to discount the mort? gage in question at the usual rates, and arranged with Gline that one-half the discount be charged to Cline, one-half to Winsor& Co., the complainants; * * * that he obtained from the prosecuting attorney’s firm three hundred and thirty-five dollars at the time by checks.” It farther appeared that the money belonged to one Carrington, for whom the firm was doing business. The prosecuting attorney was therefore distinctly interested in the result, and unable to attend the case, within the meaning of Comp. L. § 534. See also Meister v. People 31 Mich. 101; Sneed v. People 38 Mich. 251; Ulrich v. People 39 Mich. 249.

We are of opinion that the respondents are entitled to a new trial, and it will be certified to the court below accordingly.

Graves and Cooley, JX, concurred. Campbell, J. I concur in the result.