
    Selah Hart v. The State of Ohio.
    A charge in an indictment for forgery, that the defendant had forged a promissory note, described in the indictment as a note without a seal, is not supported by evidence tending to prove that defendant had committed forgery of a note under seal. It is error in the court to admit such evidence in proof of the charge.
    Error to the court of common pleas of Morgan county.
    At the October term, 1851, of said court, Hart, the plaintiff in error, defendant below, was indicted, tried, convicted, and sentenced to imprisonment in the penitentiary for forgery. The indictment contains three counts. In tho first count it is averred that on April 30, 1851, Selah Hart “ falsely made, forged, and counterfeited a certain promissory note,” etc., which “ is of the purport and effect following:
    “ ‘ Ton months after date, for value received, I promise to pay Selah Hart, or order, the sum of §406, as witness my hand and seal.
    “ ‘April 2,1851. G. Armstrong.’ ”
    The second count charges that Hart, having in his possession a promissory note executed to him by George Armstrong, under the signature of G. Armstrong, precisely in all respects like the note set out in the first count, except that it was for the payment of six dollars, on April 30, 1851, “falsely did alter the said promissory note,” by inserting before the words “ six dollars,” the words 
      “four hundred and ” thus making a note similar to the one set out in the first count.
    *The third count is for feloniously uttering and publishing, as true and genuine, a false, forged, and counterfeit note, described as in the first count. The indictment does not aver the loss of the forged instrument. The note, as set out and described in all the counts, is not set out or described as a note under seal. The note set out, before the signature and date, contains the words “as witness my hand and seal,” but has no seal.
    During the trial the state introduced evidence tending to prove that the note purporting to be forged, was in the possession of the accused, and was by him destroyed; and then the state offered secondary evidence of the contents of said note as originally executed, and as it subsequently appeared. This, and all the other evidence, is contained in a bill of exceptions taken during the trial. The accused, by his counsel, moved the court below for a new trial, and in arrest of judgment, which motions were overruled, and exceptions were duly taken to the action of the court in overruling the motions.
    Tari ous errors are assigned: 1. That the court erred in refusing to rule out the evidence of the state. 2. That the court erred in receiving evidence of the destruction of the note without an averment in the indictment to that effect. 3. That the court erred in receiving secondary evidence of the contents of the note, without averment in the indictment of the loss of said note, or without averment that it was in possession of defendant, and because no notice was served on defendant to produce the note. 4. That the court erred in receiving, in evidence, a copy of a note not under seal. 5. That the court erred in receiving secondary evidence of the contents of the note alleged to be forged, when the state only proved the destruction of a similar note under seal, and no other.
    The last-named error is the one upon which the decision of this' court is made, and the evidence upon this part of the case is sufficiently stated in the opinion of the court. The other evidence, having no bearing on the decision, is omitted.
    Parish, Evans & Clark, for plaintiff in error,
    insisted that *the note which was proved to have been destroyed, was a note under seal, and the note counted on was not under seal. No evidence tending to prove forgery could be given, as there was no sufficient evidence of the loss or destruction of the note counted on.
    Besides, in the absence of any averment in the indictment excusing the non-production of the original note, no evidence of its loss could be received, and in this the court erred.
    John E. Hanna, for state,
    cited Briggs v. Taylor, 9 Wheat. 483 ; Bouldin and wife v. Massie, 7 Ib. 122, and note at the end of the case; 1 Pet. 591; 7 Ib. 99 ; United States v. Reybourn, 6 Ib. 364; 13 Johns. 93 ; 17 Ib. 294; How v. Hall, 14 East, 276.
    R. W. P. Muse, prosecuting attorney,
    on the same side, cited Whartom’s Am. C. L. 161; 3 Mass. 82; 1 Ib. 7, and note ; 14 East (Sprague’s case); 13 Johns. 90 ; 1 Chit. Crim. L. 566, 567, 578, 579 ; 16 Wend. 522.
   Caldwell, J.

On the trial of this case in the court below, evidence was offered for the purpose of showing that the note had been destroyed by the defendant himself, and then secondary evidence of the contents of the note, by introducing what was said to be a' copy, and by other testimony. To the introduction of all this evidence the defendant’s counsel objected, but the court overruled the objections and received the evidence. The state, for the purpose of introducing the secondary evidence, to prove the contents of the note alleged to have been forged, called on James C. Newell, who testified that in August last he saw defendant have a note, made by George Armstrong, payable to said Selah Hart, and that he (Selah Hart) then tore it up, and that said note was a sealed instrument.

The state then proceeded with the secondary evidence. It was proved that the note had boon left with the firm of Corner, Davis & Sprague, by the defendant; that whilst it was in their *possession, the prosecuting witness, George Armstrong, obtained it, and took it to Henry Dawes, who took a copy of it, and handed it back to Corner, Davis & Sprague; that Corner, one of said firm, delivered it to John Moody, who delivered it to the defendant. Armstrong testifies that his signature to the note was genuine, but that the words ‘-four hundred” wore inserted after it was signed. Two witnesses, Conn and Hart, testify to having seen the note before it was executed, and that it was drawn up for $406, the same amount that it afterward contained. The copy of the note, taken by Dawes, was given in evidence, corresponding with the note set forth in the indictment, and is not under seal. In addition to Newell, Corner testifies that his strong impression is that the note was under seal. Conn testifies that he saw the note before it was-executed, and afterward saw it in the hands of Moody, and that it had a seal. Edwin Hart testifies positively that the note had a seal.

On the other hand, two or three other witnesses are interrogated on this subject, who do not recollect of any seal—they do not speak positively one way or the other. Armstrong says he does-not recollect whether the note had a seal or not; he says the copy was taken for a true one, and he supposed that it was. Dawes, who copied the note, says he does not recollect of any seal, and thinks if there had been one that he would have copied it.

The first question which is presented, is, whether the court were justified in permitting the copy of the note, and the parol testimony in reference to the description of it, to be given in evidence.

We think the evidence was inadmissible. It is a universal rule of evidence, that a party offering to prove any matter is bound to produce the best evidence which the nature of the case will admit of, or give a satisfactory excuse for not presenting such evidence, before he will be. permitted to introduce evidence of a lower or secondary character; and this is especially the case in forgery, where the production of the instrument *itself is so necessary to determine on the truth of the charge. The ground on which secondary evidence is said to be admissible in this case, is, that the note has come into the possession of the defendant, and has been by him destroyed. The note, however, which Newell testifies to have seen in the possession of defendant (and he is the only witness who testifies to this branch of the ease), and which was by defendant destroyed, was a note under seal. Moody delivered this note to the defendant, and Conn testifies that he saw the note in Moody’s hands, and that it was a note under seal. So-that the note that came into the hands of defendant, and was by him destroyed, was a note under seal. This would not lay .any ground for the introduction of secondary evidence, if a note not under seal. They are, both in civil and criminal pleading, distinct and separate instruments ; evidence of one will in no case support a pleading describing the other. But although this would be the legal effect of the evidence, yet there is no doubt but that the theory on which the state proceeded was the trueono—in fact, that the evidence, in reality, all related to the same paper. And the evidence on the part of the state, as well as the evidence for the defense, proves that that paper was a note under ■seal. The evidence, then, entirely fails to prove the charge in the indictment, which is forgery of a note not under seal. ¥e think it a clear case of variance between the proof and the pleadings, and that the court erred in not ruling out the evidence. This view of tho case renders it unnecessary to pass on the other errors assigned.

Judgment reversed and cause remanded. 
      
       The decision of questions relating to the subject of forgery, etc., may be found in the following cases: Hess v. State, 5 Ohio, 1; Pickens v. State, 6 Ohio, 274; Simmons v. State, 7 Ohio, 116, pt. 1; Anderson v. State, 7 Ohio, 450; Birney v. State, 8 Ohio, 230 ; Kegg v. State, 10 Ohio, 75; 10 Ohio, 354; Barnum v. State, 15 Ohio, 717 ; Ohio v. Bronson, 1 West. L. J. 222; Ohio v. Neale, 2 West. L. J. 570.
     