I think this judgment should be reversed for legal error.
1. The ledger of the trust company was improperly admitted in evidence.
2. No legal audit of the bill was shown. The learned district attorney admitted in open court that in the absence of Maas he was compelled to prove payment to charge defendant.
3. Papers, alleged to be records of inquisitions held by the defendant, which were drawn nearly a month after the claim is charged to have been presented, and which were never filed in the county clerk's office, but remained in defendant's private custody, were taken from his possession by subpœna duces tecum. These declarations were no part of the res gestæ; they did not exist until long after the crime charged is alleged to have been consummated.
They were incompetent evidence and obtained in violation of defendant's rights as secured by the Constitution of the United States (Amendment IV) and the Bill of Rights of this State (2 R.S. [Banks' 9th ed.] 1650, § II).
The People in trying a defendant undertake, not only to establish his guilt, but to do so under the forms of law.
All concur with O'BRIEN, J., for affirmance, except BARTLETT, J., who files dissenting memorandum, and MARTIN, J., who concurs with BARTLETT, J., on first two grounds of his memorandum.
Judgment of conviction affirmed. *Page 542