Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

The State r. Bunnell.

a material part of the affidavit, necessary to support an information filed upon it.

The construction contended for might be given to the clause in question, without doing violence to the literal meaning of the language used by it, but we can not agree that such a construction ought to be given to the clause when considered with reference to other provisions of the criminal code, and the long established practice in this State in criminal proceedings.

In the first place, whatever it is material to allege in the affidavit to be filed with the clerk, like the allegations of an indictment or information, must be proved at the trial before the party charged can be convicted.

In the next place, the names of the witnesses do not constitute any part of the description of, or an ingredient in, any crime defined by or punishable under the laws of this State.

If, therefore, the construction contended for by counsel for the appellee should be adopted, the prosecuting attorney would be required to prove at the trial matters which were neither jurisdictional in their character nor an element in the crime charged in the affidavit, a result unsupported by any of the analogies in criminal prosecutions, and inconsistent with the general scope and spirit of the code of criminal procedure.

The information may contain more than is averred in the affidavit, but it must not omit any material matter embraced in the affidavit. Moore's Criminal Law, section 135. An information will not be quashed when there is sufficient matter alleged to indicate the crime and the person charged. Acts 1881, p. 148, section 181. Applying that rule to the affidavit filed in this case, we see no objection to its sufficiency in any material respect. It set forth the offence, and person charged, in plain and concise language, and that was all that was necessary to sustain the information based upon it.

When, under the criminal code of 1852, an affidavit was filed with the clerk, or deposited with the prosecuting attorney, to be used as the foundation for an information, the names of the witnesses had also to be furnished. 2 R. S. 1876, p. 377,

The State v. Bunnell.

section 22. This was evidently to enable the prosecuting attorney to endorse the names of the witnesses on the information, as the prosecuting attorney could not get a continuance on account of the absence of a witness, unless his name was endorsed on the information.

When, therefore, the criminal code of 1881 was enacted, it was, and for many years had been, the practice to require the person making an affidavit for an information, to furnish with the affidavit the names of the witnesses by whom it was expected the offence could be proved.

The provision of the code of 1852, thus requiring the names of the witnesses to be furnished, was, however, directory merely, as the prosecuting attorney was at liberty to obtain the names of witnesses from any other available source, and endorse them on the information. See sections 18, 27, 28 and 88 of the criminal code of 1852. Section 98 of the code of 1881 provides that when an indictment is returned into court, the names of all the material witnesses must be endorsed upon it, but permits other witnesses to be afterwards subpænaed by the State; the only difference between the two classes of witnesses being that a continuance can not be granted on account of the absence of a witness whose name was not endorsed on the indictment when it was presented by the grand jury. This provision of the code is alike applicable to prosecutions upon information as the series of sections to which it belongs has reference to informations as well as indictments.

We, therefore, construe the fifth clause of section 106 of the code of 1881, set out as above in this opinion, as meaning that, when a person having knowledge of the commission of a misdemeanor makes an affidavit setting forth the offence and the person charged, he is required at the same time to furnish the names of the witnesses by whom he has reason to believe the offence can be proven, and that he may do this by inserting the names of the witnesses in the affidavit, by endorsing their names on the affidavit, or by causing a list of such names, to be made in some other appropriate way, to be

Cronkhite v. Nebeker et al.

filed with the affidavit, regarding the provision as to the names of witnesses as being directory only, and as not comprising the only method by which the prosecuting attorney may obtain the names of witnesses for the State.

Thus construing the clause of the statute under consideration, we are necessarily brought to the conclusion that the court below erred in quashing the affidavit, as well as the information.

The judgment is reversed, with costs, and the cause remanded for further proceedings.

81 319 126 557

81 319 e 166 425

No. 8444.

CRONKHITE v. NEBEKER ET AL.
PROMISSORY NOTE.Material Alteration.-- Inserting Name of Bank.- Bona

Fide Purchaser. The maker of a promissory note, perfect in its terms,
not negotiable by the law merchant, does not, by leaving a blank space
in the body of the note, wherein words of negotiability may be so in-
serted as not to furnish an indication of the alteration, give an implied
authority to the payee to insert therein the name of a bank; and such
an insertion, without the authority of the maker, is such a material al-
teration of the note as will invalidate it in the hands of a bona fide pur-

chaser, whether he has notice of the alteration or not.
SAME.-Sale and Purchase of.— Purchaser Pul upon Enquiry. The purchaser

of a note, whether negotiable by the law merchant or not, is put upon
'enquiry as to its genuineness in all its material parts, by the mere fact
that it is offered for sale; and if he omits to make enquiry of the maker,
he buys at his own risk, and upon the faith of his immediate endorser,
or of others, if any, to whom he may legally have recourse.
From the Warren Circuit Court.
W. P. Rhodes and A. R. Owen, for appellant.
L. Nebeker and S. M. Cambern, for appellees.

Woods, J.—The appellant denied under oath the execution of the note upon which the appellees obtained judgment

Cronkhite r. Nebeker et al.

against him. There is no dispute in reference to the facts proved at the trial, and the question for decision is whether the finding of the court was right.

The appellant, who was at the time a man of intelligence and able to read both written and printed matter with ease, executed a promissory note of the tenor following, which he did then and there read, to wit:

“$75. September 6th, 1877. Twelve months after date, I promise to pay to the order of G. H. Fitzmaurice, at Covington, Indiana, seventy-five dollars, value received, without any relief from valuation or appraisement laws, with interest at ten per cent. per annum from date, and ten per cent. attorney's fees. The drawers and indorsers severally waive presentment for payment, protest and notice of protest and nonpayment of this note. [Signed]

“ LEVI A. CRONKHITE." The note was prepared by the payee upon an ordinary printed blank, which was so arranged that there was one line in the blank in which there was no printed word except the word “at” printed at the left hand end of the line, and beginning about the middle of said line there were written the words

Covington, Ind.," leaving a space sufficient between the word “at” and the word “Covington,” to insert the words “The Farmers Bank” in a handwriting corresponding with the written parts of the note.

At the time of making the note, the appellant objected to its being made payable at a bank, and thereupon the words

Covington, Ind.,” were written in by the payee, who filled up the written parts of the instrument with pen and ink which he carried with him. After the execution of the note by the appellant, and without his knowledge or consent, Fitzmaurice inserted the words “The Farmers Bank” before the word

Covington,” in such a manner as to afford no indication of an alteration of the note after its execution, and in that condition endorsed it before maturity to the appellees who paid value therefor, without notice or intimation of the alteration.

[ocr errors]

Cronkhite v. Nebeker et al.

In support of the decision of the circuit court the following cases are cited: Marshall v. Drescher, 68 Ind. 359; Gothrupt v. Williamson, 61 Ind. 599; Cornell v. Nebeker, 58 Ind. 425; Spitler v. James, 32 Ind. 202. In these cases the following are referred to: Hereth v. The Merchants' Natl Bank, 3+ Ind. 380; Nebeker v. Cutsinger, 48 Ind. 436; Riley v. Schawacker, 50 Ind. 592; Steele v. Moore, 54 Ind. 52; Woollen v. Ulrich, 64 Ind. 120; Noll v. Smith, 64 Ind. 511; Gerrard v. Hadden, 67 Pa. St. 8; Zimmerman v. Rote, 75 Pa. St. 188; Chapman v. Rose, 56 N. Y. 137; Redich v. Doll, 54 N. Y. 234.

In Gillaspie v. Kelley, 41 Ind. 158, the note read when executed,“ payable at Bank, at Frankfort." The alteration consisted in filling the blank so as to designate a particular bank. It was held that the holder of the note had implied authority to fill the blank in that way. The following extracts from the opinion in that case are pertinent to the present discussion :

“The insertion of the name of the bank in Frankfort, where the same was payable, was a material alteration, and rendered the note void unless the payee was authorized to fill the blank by inserting the name of the bank. Woodworth v. Bank of America, 19 Johns. 391; Clute v. Small, 17 Wend. 238; Nazro v. Fuller, 24 Wend. 374.

“We proceed to inquire whether the payee of a negotiable promissory note is authorized to insert the name of the bank where the same has been left blank.

“The maker of a promissory note stands upon the footing of an acceptor of a bill of exchange. Nazro v. Fuller, 24 Wend. 374; Chitty Bills, 100–103; Byles Bills, 173–177.

“In our opinion, the rule is well settled, that if a person indorses or signs in blank paper or a note and intrusts it to another that he may raise money upon it, he authorizes that other person to fill all blanks which are necessary and proper to make the instrument a perfect and complete bill of exchange or promissory note, as the case may be. Holland v. Hatch,

VOL. 81.–21

« ΠροηγούμενηΣυνέχεια »