State v. Clinton

Citation67 Mo. 380
PartiesTHE STATE v. CLINTON, Appellant.
Decision Date30 April 1878
CourtUnited States State Supreme Court of Missouri

Appeal from Phelps Circuit Court.--HON. V. B. HILL, Judge.

L. F. Parker for appellant.

J. L. Smith, Attorney-General, for the State.

NORTON, J.

Defendant was indicted in the circuit court of Phelps county, at its February term, 1877, for forgery in the third degree, in forging a promissory note of one Robert F. Springer, for the sum of $5,500. Defendant was duly arraigned at the February term, 1878, of said court, put upon his trial, which resulted in a verdict of guilty, and a judgment assessing his punishment at five years' imprisonment in the penitentiary, from which he has appealed to this court. We give the following summary of the tendency of the evidence and the proceedings in the cause in the trial court, from which the principal grounds of error relied upon for a reversal of the judgment will appear.

The evidence on the part of the State tended to show that the note mentioned was a forgery; that Springer was dead; that some time after his death the defendant presented said note to one of the executors of the estate, in Salem, who pronounced it a forgery, the defendant insisting that it was genuine; that the note was thereupon delivered to W. G. Pomeroy, Esq., to be by him kept till the matter was settled; that Springer was a wealthy man and worth over $30,000, $18,000 of which was in money, notes and accounts; that the defendant repeatedly offered to sell said note. To this the defendant objected, which objections being overruled, he excepted. When the State offered the note in evidence, the defendant objected, because the indictment did not sufficiently describe the same, which objections were by the court overruled.

During the trial the State was permitted to prove that the signature of Springer to two other papers, which were in no way connected with the cause being tried, were genuine; and the signatures thus proved were submitted to two persons, experts in comparing handwritings, who were allowed to compare the same with the signature of Springer alleged to be forged, and give their opinion as to whether they were written by the same person. This action was excepted to by defendant.

The defendant testified, in his own behalf, that he had deposited the sum of five thousand five hundred dollars with Springer, to prevent his creditors from getting at the same; that he let Springer have three thousand dollars at one time, for which he took a due-bill, and twenty-five hundred dollars at another, whereupon Springer gave him the note mentioned; that it was genuine and signed by Springer. Defendant also offered evidence tending to show that such a due-bill as he described had been seen in his possession; that Springer was at his house on the day named by him; that the defendant and Springer were seen in a small room together.

In rebuttal the State introduced several witnesses and propounded to each of them this question: “Do you know the defendant's general character in the neighborhood where he lives, for truth and veracity, honesty, chastity and morality?” To which the defendant objected, because the defendant had not put his character in issue; because the testimony, if proper at all, ought to be confined to truth and veracity, and because the question as to each trait of character should be asked separately; which objections being by the court overruled, the defendant excepted. Said witnesses then answered that they knew the general reputation of defendant in the town of Rolla, and that it was bad; that defendant was well known there, but lived about five miles east thereof.

1. FORGERY: under section 28, p. 1091, Wag. Stat.

The objection made by defendant to reading the note in evidence, because it was not sufficiently described in the indictment, we think was properly overruled. Section 28, Wag. Stat., p. 1091, provides: “That in any indictment for forging any instrument, it shall be sufficient to describe such instrument by any name or designation by which the same shall be usually known, without setting out any copy or fac simile thereof, or otherwise describing the same.” The descriptive words used in the indictment in question “are that the defendant did feloniously make and forge a certain promissory note purporting to be the act of one Robert F. Springer, by which a pecuniary demand and obligation for the payment of the sum of five thousand five hundred dollars by the said Robert F. Springer to the said Jacob Clinton, purported to be created.” It was further alleged as a reason for not describing the note more particularly, that it was in the possession of defendant. The note offered in evidence answered the description contained in the indictment. It purported to create a liability on the part of Springer to pay to Clinton the sum of five thousand five hundred dollars. It is true that the indictment did not give the date of the note nor the time when it was payable, nor do we deem this material, in view of the statute and the allegation in the indictment that the note being in the hands of defendant, could not be more particularly described. When the indictment contains enough to notify defendant of the charge, such minuteness of description may be dispensed with, and such was the design of the statute. State v. Smith, 31 Mo. 120; State v. Fisher, 65 Mo. 437; State v. Watson, Ib. 115.

2. PROOF OF HAND-writing.

It is also insisted that the court erred in allowing two witnesses, experts in comparing hand-writing, to give their opinion as to the genuineness of Springer's signature to the note in question, with two other writings of Springer, not connected with the cause, which were proved to be genuine. When proof of handwriting is necessary to be made, all the authorities agree that it may be proved by a witness who is acquainted with the hand-writing of the party in controversy, and this rule has been relaxed in two cases: 1. When the writings are of such antiquity that living witnesses cannot be had, and yet are not so old as to prove themselves. Here the course is to produce other documents, either admitted to be genuine or proved to have been respected, treated and acted upon as such by all parties, and to call experts to compare and testify their opinion concerning the genuineness of the instrument in question. 2. When other writings, admitted to be genuine, are already in the case. Here the comparison may be made by the jury, with or without experts. 1 Green. Ev., § 578.

The writings offered in evidence in this case, as standards of comparison, are not embraced in either of the above classes, but were irrelevant to the record and under the common law rule were inadmissible. For the rejection of such evidence, two reasons have been assigned, viz: “First, the danger of fraud in the selection of the writings offered as specimens for the occasion; and secondly, that if admitted, the genuineness of these specimens may be contested, and others successively introduced, to the infinite multiplication of collateral issues, and the subversion of justice. To which may be added the danger of surprise upon the other party, who may not know what documents are to be produced, and may not, therefore, be prepared to meet the inferences to be drawn from them. The same mischiefs would result, if the same writings were introduced to the jury through the medium of experts.” 1 Green Ev., Sec. 580. It may, however, be observed that in England this rule has been overthrown by an act of parliament, passed in 1854, in relation to procedure in civil cases, and to be found in Vol. 94 of Statutes at Large of the United Kingdom, and Chap. 125, p. 800, 17-18, Vic., in which it is provided, “That comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine, shall be permitted to be made by witnesses; and such writings and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.” It may also be observed that in 1865 another act was passed extending and making applicable the above rule in all criminal trials. (Vol. 43, London Law Journal, Chap. 18, p. 75.)

While the common law rule which forbids the proof and admission in evidence of writings irrelevant to the record for the sole purpose of erecting a standard of comparison of hand-writings has been thus abrogated in England, and while the decisions of the courts of the different States of our own country are so conflicting as to be irreconcilable, we are disposed to adopt the rule extracted by Greenleaf (Sec. 581, Vol. 1), as being in harmony with a majority of them, leaving it to legislative action to make any change deemed desirable. The rule thus laid down is “that such papers can only be offered in evidence to the jury when no collateral issue can be raised concerning them, which is, only when the papers are either conceded to be genuine, or are such as the other party is estopped to deny, or are papers belonging to the witness, who was himself previously acquainted with the party's hand-writing, and who exhibits them in confirmation of his own testimony.” This court has in the case of the State v. Scott, 45 Mo. 304, given its sanction to the rule thus laid down, and we are not disposed to extend its operation so as to allow collateral issues to be raised in regard to the hand-writing of instruments in no way relating to or connected with the cause. For the error committed in allowing such writings to be proved as standards of comparison, and in permitting witnesses to express their opinion as to the genuineness of the writing in question, based on a comparison of such standard with the disputed writing, the judgment must be reversed.

3. CRIMINAL LAW: defendant as a witness; impeachment.

As the cause will be remanded for re-trial, we deem it proper to notice the objection to the action of the court in allowing the State to inquire into...

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  • State v. Williams
    • United States
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    • October 18, 1935
    ...1877, page 356, permitting the accused in a criminal case to testify in his own behalf, the same rule was applied in State v. Clinton, 67 Mo. 380, 391, 29 Am. Rep. 506, to defendants thus taking the stand; and a year after the deliverance of that decision the statute was changed to its pres......
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