majority">Dillon, Ch. J.

1. Criminal law: false pretenses. — I. The first assignment of error relates to the refusal of the court to give to the jury certaiu instructions asked by the defendant. The first of these is, in substance, that no indictable offense is charged against the defendant, because no false tokens were used, and the acts imputed to the defendant are of private and not public concern. In other words, it is claimed that the statute has not altered the common law as to cheats, but is simply in affirmance of it.

It provides, that “ if any person designedly, and by false pretense, * * and with intent to defraud, obtain from another any money, goods or property * * he shall be punished,” etc. Eevision, § 4394.

If the representations and acts, or the material portions thereof charged against the defendant in the indictment are true, his case is embraced within the statute provision just quoted.

The questions presented by the other instructions asked by the defendant will be considered hereafter.

*4353._evidence: right of defendant to be confronted by witnesses. II. The main point in this appeal, however, relates to the action of the District Court in regard to the notarial certificates of protest. By referring to the statement of facts, it will be seen that two of the drafts drawn by the defendant were burned protested to the banks in Des Moines which had forwarded them for collection.

The officers of these banks were witnesses and stated, without objection, that the drafts were drawn, sent forward, were not paid, and were returned protested.

After these officers had testified, the State offered in evidence the drafts-which had been so drawn and returned, with the accompanying certificates of protest by the notaries public in St. Paul. .To this defendant objected, but the same were admitted in evidence, and the defendant excepted.

He now assigns as error the action of the court in admitting in evidence the certificate of the notary public; and the instructions given by the court in reference thereto, and the refusal by the court of the one asked by ■ the defendant on the same subject. The court instructed the jury, on this subject, as follows:

“ 3. The drafts drawn on the St. Paul bank and the-notarial protests returned therewith are not conclusive that the defendant liad no money in the bank at St. Paul, but such drafts and notarial protests are proper for you to consider as tending to show tlfat he had no money deposited in said bank.

“But if you find that the said drafts were sent to the said bank at St. Paul for acceptance or payment, and that such acceptance and payment were refused by said bank, it would be a strong circumstance to show that he had no money there, or not sufficient to pay said draft.”

The defendant asked the court to direct the jury, “that the burden of proof is with the State, to show that the *436defendant had no funds in St. Paul to draw on, and on this subject and in this case, the protests of notaries public, if unsupported by other testimony, are not sufficient to establish such' fact.” This was refused as asked; and the instruction of the court on this subject, is the one above copied.

The question is fairly presented, whether the certificate or instrument of protest of the notary public was admissible in evidence against the defendant, to prove the allegation that the defendant had no money on deposit in the bank at St. Paul.

The Constitution contains the usual clause, giving the defendant in “ all criminal prosecutions, the right to be confronted with the witnesses against him.” Bill of Bights, § 10.

The chapter on evidence, in the Civil Code, contains this section: “ The usual protest of a notary public, without proof of his signature or notarial seal, is prima facie evidence of what it recites concerning the dishonor and notice of a bill of exchange or promissory note.” Bev. § 4011.

In the Criminal Code occurs this general provision : “ The rules of evidence in civil cases,"are applicable also in criminal cases, except as otherwise provided.” Bev. § 4805.

It is our judgment, in view of these various provisions of the law bearing on the subject, that the certificate of protest of the notary public was not competent evidence against the defendant, for the purpose for which it was offered and used.

The material pretense alleged to be false, was that the defendant represented that he had funds on deposit in the First National bank at St. Paul. The falsity of this representation it was, of course, incumbent on the State to establish, — that is, the State must lay before the jury *437such evidence, direct or circumstantial, as shall satisfy them that the defendant had no funds on deposit in the bank at St. Paul. Under the Constitution, he has the right to see the witnesses against him, face to face. lienee the State could not prove the non-existence of funds in the bank at St. Paul, by the deposition of any officer of the bank, nor could it prove this fact by showing the declarations of those officers. The dishonor of a bill or note may, in civil cases, be proved by the oral or written testimony of the notary, or other person who presensed it. But the deposition of the notary could not be used against the defendant in a criminal prosecution ; the Constitution forbids it. Dominges v. The State, 7 Sm. & M. 475; Farrington v. The State, 10 Ohio, 354. Can the mere certificate of protest be thus used ? It seems to us not.

4._statute construed. The statute in speaking of such protests has reference to civil cases. The main purpose of the section referred to (4011) is to make the certificate of the notary evidence without proof of his signature or seal. Sather v. Rogers, 10 Iowa, 231; Thorp v. Craig, id. 461.

The notary presents a bill for acceptance or payment and it is refused. He knows the fact that he presented it, and that the drawee refused to accept or to pay. And it is these facts of which he has personal knowledge, that he states in his certificate of protest. "Whether the drawee had funds he does not know. The object of the protest is to hold the drawer or indorsers, and they are liable if the bill has been dishonored and notice has been given, whether the drawee had or had not funds of the drawer in his hands.

But in the case at bar the question is different. To make the defendant liable, the State must establish the fact that he had no funds in the bank. The notary can*438not know or certify to that fact. The officers of the bank may tell him so, but this is their declaration simply and could not be admissible against the defendant to prove the fact declared. Such a declaration is not, in a criminal case, clothed with the character of evidence by merely being certified to by a notary public. Farrington v. The State, supra.

It is our opinion that the court erred in admitting the protests in evidence to prove, the fact of the want of funds in St. Paul, and in refusing to give the instruction on this subject, before copied, asked by the defendant.

5. -—- error without prejudice. It has been suggested that even if this action was erroneous it ought not to operate to reverse the judgment, because, aside from'the notarial protests, the ' evidence abundantly shows that the defendant had no money on deposit in St. Paul.

It is true, that each of the cashiers of the banks at Mes Moines, at which the drafts on St.' Paul were drawn by the defendant, and who, at his instance, had fowarded them for collection, testified, without objection made at the time, that they were returned unpaid. and protested. Even if objection had been made, it was competent for the State to trace the history of those drafts, to show the drawing thereof by the defendant, that they were sent forward and that they had been returned unpaid.

So the State might show as it did, the number of the drafts drawn at the different banks, the receipts taken, the use made of them, defendant’s failure to wait for returns, to call for the drafts or the proceeds, and the like circumstances; and these facts are competent as tending to show that the defendant had in fact no money on deposit in St. Paul. In other words, this fact may be established, as we are willing to grant, by circumstances as well as by direct evidence.

In view of the case made against the defendant, and *439of the fact that if he had money in St. Paul it would be easy for him to show it (as it is open to him to use the depositions of the bank officers or others), we also grant, that the failure of the defendant to produce any evidence, is a circumstance against him.

But, as we cannot say that the verdict of guilty was not, or might not have been brought about by the erroneous reception of the notarial protests and the erroneous rulings of the court in respect thereto in the instructions given and refused, it is the right of the defendant to have the judgment reversed and a new trial given him. This is accordingly ordered.

Reversed.

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