
    Pendleton v. The Commonwealth.
    July, 1834.
    [26 Am. Dec. 342.]
    Forgery — Secondary Evidence — When Admissible.— On the trial of an indictment for forgery of a check on atiank, if there he proof rendering it highly prohahle that the original paper has been lost or destroyed, though this was not done by the accused or by his procurement, secondary evidence of the contents, character and description, of the paper, is admissible to sustain the prosecution.
    Petition for a writ of error to a judgment of the circuit superiour court of Henrico. Pendleton was indicted and tried there, for forging and counterfeiting a check in the name of Bagwell, Smith & Williams on the bank of Virginia, payable to Pendleton or bearer, for 200 dollars; and for passing and uttering the check as genuine, knowing it to be a forgery.
    At the trial, the attorney for the commonwealth called a witness, Dudley, who testified, that he received a check from the prisoner, of which he retained a copy and delivered the original to D. Miller; he produced the copy which corresponded exactly with the check described in the indictment. Miller testified, that he delivered the original check to D. Wilson. Wilson testified, that he delivered it, with sundry other checks, to J. Talley; that Talley, in his presence, burned all the checks so delivered to him except one which he kept; but whether the one so kept by Talley, was the same that was delivered by Dudley to Miller and by Miller to this witness, he did not know. Talley testified, that he received several checks from Wilson, and ^burned all but one, which he retained and put in his pocket book; that he had since seen it among his papers; that two or three weeks before the trial, he had looked among his papers for the check, and for other purposes, and could not find it; that not having been apprised that he was to be examined as a witness till he was called, he had made no thorough search among his papers for the single purpose of finding the check; he did not know that it had been destroyed; it was possible that it was still among his papers ; but he believed it was not among them, and that it was lost. The attorney for the commonwealth then shewed a written notice, which had been served on the prisoner some time before the trial, that he would be required to produce the check (describing it) at the trial, and that if it sh< uld not be produced, other evidence of its contents, character and description, would be offered to sustain the prosecution. And, accordingly, the original not being produced, he offered secondary evidence of the contents, character and description, of the check; namely, the copy of it produced by Dudley. The prisoner’s counsel objected, that such secondary evidence, if competent in any case, was not competent under the circumstances proved in this case. But the court being satisfied that it was impracticable to produce the original check, and that reasonable diligence had been used to procure it without effect, overruled the objection, and admitted the secondary evidence; to which opinion the counsel for the prisoner filed exceptions.
    The jury found the prisoner guilty, and the court sentenced him to imprisonment in the penitentiary for two years, according to the verdict.
    And now he presented a petition to this court for a writ of error, assigning for error, the admission of the secondary evidence of the contents, character and description of the check.
    Scott, for the petitioner.
    To permit the prosecutor to resort to evidence of the contents of a paper alleged to be *forged, without producing the original, except in cases where the paper is withheld by the accused, or has been destroyed by him, or by his procurement, would be to deprive him, in many cases, of the highest evidence of his innocence. It would render him unable to prove the paper genuine. If, indeed, the original be traced to the possession of the prisoner, and he will not produce it, or if it be shewn that he has destroyed it, or procured it to be destroyed; in any such case, it is admitted, secondary evidence of its contents would be proper. But, in a case like this, in which the paper, if destroyed or lost at all, has been destroyed or lost by another person, without the procurement, connivance or knowledge of the prisoner; as the absence of the primary evidence may deprive the prisoner of the means of making a just de-fence, without any fault of his own, the secondary evidence ought not to be admitted. Accordingly, it will be found on examination, that in all the cases in which secondary evidence of the contents of a paper charged to be forged, has been admitted, a foundation has been laid for the admission of the secondary evidence, by proof that the original was in the possession of the accused himself, or had been destroyed by him. 1 Chitt. Crim. Daw 566, 7, and the cases there cited. It is obvious, that a notice to the party, to produce an original paper, shewn by the prosecutor not to be in his possession, or within his reach or control, is nugatory; and the requisition of such notice, therefore, shews the necessity of tracing the paper to his possession. But, in the present case, was there any foundation laid for the admission of the secondary evidence? The original was traced to the witness Talley. He testified, that he kept one check and burned others; that two or three weeks before, he had looked over his papers to find the check he did retain, and for other purposes, and could not find it; but he had not made a thorough search among his papers with the single purpose of finding this paper; nor could he have done so, being called as a witness suddenly and unexpectedly: he believed it was lost. Surely, for aught that appears, *the paper may be still in existence among Talley’s papers; and time should (as it certainly might) have been given him, to make a thorough search for it.
    
      
      Forgery — Secondary Evidence — When Admissible.— Kirk v. Com., 9 Leigh 630, was a prosecution for passing a counterfeit coin. On his trial, the prisoner objected to the admission of any testimony to prove the passing of the coin, or that the same was forged or counterfeit, without the production of the piece of money alleged to be forged and passed. In answering this objection, Alltsx, J., who delivered the opinion of the court, said: "The absence of the forged pieces may increase the difficulty of proving the prisoner’s guilt; but there seems to be no good reason for rejecting evidence tending to satisiy the jury of the fact of the felonious passing, and that the pieces passed were counterfeit. If the rule were as contended for, then secondary evidence could never be received in a prosecution for forgery; for the objection covers the whole ground, that the production of the forged piece was essential, and that all testimony to prove its counterfeit character and the felonious passing- was inadmissible unless the coin was produced. The contrary has been repeatedly established by the courts in this country’ and in Kngland. Pendleton’s Case, 4 Leigh 694; 2 Russell 674.'’
      To the point that, on a trial for forgery, the instrument alleged to be forged is the best evidence of itself and its contents, and therefore its production can never be dispensed with unless unavoidable, the principal case was cited in State v. Lowry, 42 W. Va. 208, 24 S. E. Rep. 562.
      See further, monographic note on " forgery and Counterfeiting” appended to Coleman v. Com., 25 Gratt. 865.
    
   SUMMERS, J.

The question is, whether the circumstances proved formed a sufficient ground for the admission of the secondary evidence of the contents, character and description, of the check? The general rule, which runs alike through civil and criminal proceedings, that the best evidence which the nature of the case admits of must be produced, is intended to preclude all testimony, which from its very nature supposes that the party offering it has it in his power to produce better evidence. But wherever an original paper is shewn to have been lost or destroyed, or is in the hands of the party himself, the prosecutor may give a copy in evidence, or if not, parol evidence of its contents; because, in each of those cases, the presumption of the prosecutor having it in his power to produce better evidence is repelled. In this case, the inquiry seems to be narrowed down to the sufficiency of the search made by the witness Talley, for the original paper. His testimony is not so perfectly simple, direct and positive, as it might have been; but the bare possibility that the paper might have been found on a more diligent search, was no good reason for excluding the evidence. The burning of the checks handed to Talley by Wilson, made it extremely doubtful, whether the check on which the prosecution was founded, was not one of .those committed to the flames, probably for the protection of the prisoner. If the retained check may have been the one in question, the failure to produce it was not owing to any fault of the prosecutor; nor can any presumption possibly arise of an unjust suppression by him of the primary evidence. The mind of the witness Talley himself was satisfied, that the paper was lost; and the judge, to whom this preliminary inquiry belonged, was satisfied by the examination, of the correctness of the conclusion of the witness. This court ought not to interfere, unless error is made apparent. We are ^unanimously of opinion, that there is no error. If authorities be necessary to sustain this opinion, they may be found in 2 Russel on Crimes, book 6, ch. 3, g 2, p. 674, and the cases there referred to, and the case of The Commonwealth v. Snell, 3 Mass. Rep. 82.

Writ of error denied.  