O'Connor v. State
| Decision Date | 01 October 1923 |
| Docket Number | 23125 |
| Parties | JAMES B. O'CONNOR v. STATE OF NEBRASKA |
| Court | Nebraska Supreme Court |
ERROR to the district court for Adams county: LEWIS H. BLACKLEDGE JUDGE. Reversed.
REVERSED.
James M. Johnson, F. P. Olmstead, Bernard McNeny and James & Danly for plaintiff in error.
O. S Spillman, Attorney General, and W. T. Thompson, contra.
OPINION
James B. O'Connor is charged in the information with the offense of uttering a false and forged will. On this charge he was convicted in the district court for Adams county, and sentenced to the penitentiary. He prosecutes error to this court.
The theory of the state is that this alleged will of John O'Connor was forged, after the death of John O'Connor, by James B. O'Connor or some one implicated with him, and dated back to a time prior to the death, and that the motive was to obtain the fortune left by the deceased. This theory of the state permeates the whole record and constitutes the warp and woof relied upon by the state to hold together and sustain this prosecution and conviction. In the language of the state's brief this theory is expressed as follows:
The state has consistently adhered to the above theory at all times and must now stand or fall by this theory, as it has not attempted to establish the alleged forgery of this will at any other time or in any other way.
The will in question was acknowledged before a notary public. Our statute does not require a will to be acknowledged, neither does it forbid it. Hence, a testator would have the right to have his will acknowledged as an additional means of identification of the instrument. The statute requires but two witnesses to a will, but does not forbid a greater number. If a greater number do witness a will, all are competent to testify. In the same way, the presence of an acknowledgment to a will, the seal and the signature of the notary are all competent to identify the will and must be considered. If a will is unquestioned, the certificate of acknowledgment may be treated as surplusage. However, if genuine, it proves conclusively that the notary was alive at the time he signed the certificate and attached his seal. If he later dies and claim is made that the will was recently drawn and dated back, and the state adopts this theory in a prosecution for forgery, in order to establish the falsity of the will beyond a reasonable doubt, the prosecution must refute the evidence furnished by the work of the notary by proof beyond a reasonable doubt.
We now come to a discussion of the evidence in this case. Watkins, the notary, died August 5, 1909. In the administration of his estate Judge Amick acted as attorney. Within 30 days after the death of Watkins his library and desk and notarial seal were moved to the office of Judge Amick. The seal remained in the possession of Judge Amick until this litigation came up, when search was made for it. Judge Amick found the seal in the right-hand lower drawer of the desk he obtained from Watkins' office about 30 days after Watkins' death. The seal was closed and rusted together and bore evidence of having been in this condition for a long time. The judge was unable to open the seal and took it to a mechanic. The mechanic took out the lever pin and broke the seal apart. An impression of the seal was taken upon a piece of paper and is now in the record. It proved to be the seal of Watkins and the same as the impression upon the will. This identical seal was not used on the will in question recently, as it was in the possession of Judge Amick and not available to the accused nor any one else. And the seal was unworkable, also, until broken apart by the mechanic at Judge Amick's request.
As to the signature of the notary, Judge Amick says he knew Watkins for 25 years before his death; says he had assisted Watkins many times in the trial of cases; says he knew the way Watkins dressed, how he walked and how he looked, and then says he knew his handwriting as well as he knew his face, and gait, and says the signature to the certificate to the will is the genuine signature of Watkins. And to make his judgment doubly sure, he says he went to the courthouse and found numerous signatures of Watkins, known to be genuine, and made a critical examination of the questioned signature in comparison with the genuine, and again pronounced the signature, to the certificate to the will, the genuine signature of Watkins. Watkins' wife says the signature to the certificate to the will is the genuine signature of her deceased husband. The two witnesses to the will say they saw Watkins sign his name to the certificate. Also Yeager and Brown pronounced the signature genuine. In addition to all this, the record contains numerous signatures of Watkins, admitted by all to be genuine, so that the court may also make a comparison with the signature of Watkins to the certificate to the will, which is also in the record.
Against this testimony we have the opinion of an expert witness. He thought the signature of Watkins to the acknowledgement not only spurious, but also thought it the handwriting of the accused. Another expert, fully as competent, came to the opposite conclusion. The record shows that the first expert testified in another case that the name John O'Connor, signed in Albany, New York, 50 years ago, was the handwriting of John O'Connor who signed certain papers admitted to be the handwriting of John O'Connor of Hastings, Nebraska. After reading his cross-examination, and considering the entire record, we are of the opinion that the testimony of this witness with the other testimony in the record still leaves more than a reasonable doubt as to the guilt of the accused.
While it was not necessary for the state to show that the accused actually wrote the signature to the will in question, because he was charged with uttering a forged instrument, still it was the theory of the state that the accused did in fact write the signature to the will as well as the signature of the notary. The state attempted to prove this fact to show guilty knowledge on the part of the accused in uttering the instrument. To do this the state called expert witnesses, not only to show that the deceased did not sign the will, but the further fact that the accused did.
The opinion of an expert that a certain signature to an instrument, claimed as spurious, was not written by the same...
To continue reading
Request your trial