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JAMES E. CROSS

V.

THE PEOPLE OF THE STATE OF ILLINOIS.

Opinion filed October 24, 1901.

1. CRIMINAL LAW-People are not required to make profert of forged instrument. The People are not required to make profert, in an indictment, of a forged instrument; nor is profert made by setting out the forged instrument in the indictment in hæc verba.

2. SAME-copy of note is admissible in trial for forgery. Under an indictment for forgery, which sets out the forged note in hæc verba, a copy of the note is admissible as secondary evidence if a proper foundation has been laid.

3. SAME-uhat prima facie sufficient evidence that copy of forged note is a true one. Evidence of a stenographer that she made a typewritten copy of the forged note from the original, that she compared it with the State's Attorney by first reading the original while he held the copy and then reading the copy while he held the original, and that the copy was true and correct, is prima facie sufficient proof that the copy was correct.

4. SAME-right of People to call a grand jury witness whose name is not on the indictment. It is not error to permit a witness to testify in a criminal case whose name is not on the indictment, although he testified before the grand jury, where notice that he would be called was given to the accused before trial, and it does not appear that he was taken by surprise or prejudiced by the omission of the name from the indictment.

WRIT OF ERROR to the Circuit Court of DuPage county; the Hon. CHARLES A. BISHOP, Judge, presiding.

Plaintiff in error was indicted and convicted of the crime of forgery at the October term, 1900, of the circuit court of DuPage county. The evidence was sufficient to establish these facts: That Cross, the plaintiff in error, was in December, 1899, in the employ of a medical concern located in Chicago, called the “Dr. Green Medical Dispensary," of which O. H. Marquardt was secretary and treasurer; that during that month he called on one L. E. Ketchum, a farmer, at his home in DuPage county, to solicit him to become a patient of said dispensary and

to be treated for and cured of hernia by skilled practitioners in medicine and surgery to be furnished by said concern; that he and Ketchum soon afterward met at a hotel in Naperville, in said county, and, coming to an agreement, Ketchum executed and delivered to Cross his promissory note, as follows: “$60.00.

NAPERVILLE, ILL., Dec. 23, 1899. "For value received, six months after date I promise to pay to the order of O. H. Marquardt, secretary and treasurer of the Dr. Green Medical Dispensary, the sum of sixty dollars, with legal interest. And to secure the payment of said amount I hereby authorize, irrevocably, any attorney in any court of record to appear for me in such court, in term time or vacation, at any time hereafter, and confess judgment, without process, in favor of the holder of this note for such amount as may appear to be unpaid thereon, together with costs and fifteen dollars attorney's fees, and to waive and release all errors which may intervene in any such proceedings, and consent to immediate execution upon such judgment, hereby ratifying and confirming all that my said attorney may do by virtue thereof. No. 14774.

L. E. KETCHUM." At the same time Cross executed and delivered the following guaranty to Ketchum:

"NAPERVILLE, ILL., Dec. 23, 1899. "Received of L. E. Ketchum a promise to pay $60, for which we guarantee to treat L. E. Ketchum for three months, or until completely cured.

“It is hereby agreed if a complete cure is not effected at the end of three months, the treatment is to be continued so long thereafter as may be necessary to effect a permanent cure, failing in which, we hereby agree to release L. E. Ketchum from any subsequent obligation whatsoever. It is furthermore agreed that our treatment and advice shall be followed continuously during the period of this contract; that we be notified when more medicine is needed, in order to supply it, and informed promptly of any change of symptoms or effects produced thereby. The treatment to be through correspondence. Medicine prescribed by Dr. Ranager and sent by express, patient to pay express charges.

DR. GREEN MEDICAL DISPENSARY, No. 1175.

By J. E. CROSS, Especial Er."

Afterward, and without the knowledge or consent of Ketchum, Cross, as it was charged, inserted the figure "3" before the figures "60" at the head of the note, and the written words "three hundred" before the words "sixty dollars" in the body of the note, making the note one for $360 instead of one for $60. Cross sent the note as it then read, for $360, to Marquardt, in Chicago, and shortly after, in January following, went to Chicago, and Marquardt endorsed it without recourse and delivered it to Cross to be sold and negotiated. On January 3, 1901, Cross mailed the note to Frank S. Lindley, at Danville, in a letter offering him the note for $300, and requesting him to investigate and to send him draft if he wanted the note. Lindley sent the note to a bank in Naperville, and the bank, after delivering it to the State's attorney of DuPage county to be copied by him, returned it to Lindley. Ketchum repudiated the note as being a forgery,—that is, all of it in excess of $60,—but did not deny the genuineness of his signature. Lindley was a witness before the grand jury and on the trial. He testified that he had delivered the note to C. W. Cross, the father of the defendant, and that the defendant told him that his father had delivered it to him, the defendant, to settle the matter with Ketchum if he could. C. W. Cross did not appear as a witness, but the defendant, testifying in his own behalf, denied that he had received or seen the note after he mailed it to Lindley, or that he had told Lindley that he had. It was proved that before he mailed the note to Lindley he had tried to sell it at Wheaton for $300. The note was not produced on the trial or accounted for, except as above stated. The defendant below testified that the understanding arrived at with Ketchum was, in the first place, to treat him for catarrh for the consideration of $60, and that the note and guaranty given were for that amount, but that Ketchum then informed him that he had a rupture, and that they then made an agreement that he should be treated and cured

of both ailments for $360, and that he then tore up the $60 note and threw the pieces into the slop.jar in his room in the hotel in the presence of Ketchum, and that Ketchum executed and gave him the $360 note to pay for treating him for both catarrh and hernia, and that he gave Ketchum another guaranty to cover the treatment for both ailments, but forgot to take up the first guaranty for treatment for catarrh only. This instrument of guaranty, which was given in evidence, does not state what the disease was, and Ketchum in his testimony denied that any such second note or guaranty was given,

that he had contracted for or requested any treatment for catarrh.

BOTSFORD, WAYNE & BorsFORD, for plaintiff in error:

Where, in an indictment for forgery, a copy is set out under an averment "in the words and figures following," the note so forged must be proven exactly as laid. Lang. don v. People, 100 Ill. 267; Wharton on Crim. Evidence, (9th ed.) secs. 114, 115-118.

The allegation in the indictment under an averment of "in the words and figures following," where the indictment contains no hint of a lost note, is as strong as pro. fert of a deed in a declaration. When such profert is made, secondary evidence cannot be received. Dugger v. Oglesby, 99 Ill. 412.

Secondary evidence is not admissible unless the indictment shows the note is lost or it is beyond the power of the People to produce the same. Wharton on Crim. Evidence, (9th ed.) sec. 118.

The foreman of the grand jury must endorse on the back of the indictment the names of all witnesses sworn on the case. Starr & Cur. Stat. par. 17, p. 2396.

This is mandatory on the foreman, and a disregard of the requirement would no doubt be sufficient ground to authorize the court, upon proper motion, to quash the indictment. Andrews v. People, 117 111. 199.

There is no requirement of the law of the State that the names of witnesses shall appear upon the back of the indictment, except those who testify before the grand jury. Kota v. People, 136 Ill. 658.

According to the English practice, an examined copy, to be admissible in evidence, must be verified by a witness who will swear that he has compared the copy tendered, with the original, either directly or through one employed to read the original. Wharton on Crim. Evidence, (9th ed.) sec. 179.

EDWARD C. AKIN, Attorney General, and M. SLUSSER, State's Attorney, for the People:

In an indictment for forgery, where the alleged forged instrument is set out by its tenor, no allegation that the instrument is lost or destroyed is necessary to entitle the prosecution to introduce secondary evidence of the contents of the forged instrument, where proper ground has been laid for the introduction of secondary evidence. State v. Potts, 9 N. J. L. 26; Mead v. State, 53 id. 601; United States v. Britton, 2 Mason, 464; Duffin v. People, 107 Ill. 113; Commonwealth v. Snell, 3 Mass. 81.

Witnesses whose names are not endorsed on the indictment may be permitted to testify, and such action of the court cannot be assigned for error. Yates v. People, 14 Ill. 435; Perteet v. People, 70 id. 171; Kirkham v. People, 170 id. 13; Smith v. People, 74 id. 144; Logg v. People, 92 id. 598; Gore v. People, 162 id. 265; Bolen v. People, 184 id. 338.

In the absence of any contrary showing it will be presumed that the names of witnesses endorsed upon the back of an indictment were the witnesses, and only witnesses, upon whose evidence the indictment was found. Andrews v. People, 117 Ill. 195.

In a case where secondary evidence of the contents of a written instrument is admissible it is sufficient to admit a copy in evidence, if the witness testifies that it is a copy. Lombard v. Johnson, 76 Ill. 599.

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