Hanley v. Gandy

• Decision Date: 31 October 1866
• Parties: JOSHUA S. HANLEY v. AARON GANDY.
• Court: Texas Supreme Court

28 Tex. 211

JOSHUA S. HANLEY

v.AARON GANDY.

Supreme Court of Texas.

October, 1866.

The most satisfactory proof of handwriting, when the person whose signature is in question is not himself competent to testify, is the testimony of a witness who saw the instrument executed and is able to identify it, and next to this is the testimony of witnesses who have seen the person write, or had access to or possession of his writings.

This latter mode of proof, though it involves a comparison, is not subject to the objection that it is proof by comparison of hands; that objection applies when the witness has had no previous acquaintance with the handwriting of the person whose signature is in question, but is called upon to state upon a comparison of two signatures, of which one is admitted or proved to be genuine, whether they were both executed by the same person.

It appears to be well established in England, that it is not competent to prove handwriting by a comparison of hands; but in this country the authorities are conflicting, and in some of the states such evidence seems to be admissible.

This subject is considered in the opinion both upon principle and precedent, and the conclusion is deduced, that the English rule, excluding proof of handwriting by mere comparison, is sustained by the weight of authority, and is best calculated to secure juries from imposition. Held, therefore, that it was error to allow other signatures to be submitted to the jury as evidence by comparison of the genuineness of the signature in question.

It is not intimated, however, that exceptions arising from necessity, as in cases of ancient writings, may not be recognized here as in other states, where the English rule has been adopted.

APPEAL from Tarrant. The case was tried before Hon. NAT. M. BURFORD, one of the district judges.

On the 9th of November, 1859, the appellee, Gandy, filed his petition against Joshua S. Hanley, the appellant, both in his individual capacity and as the administrator of J. A. Hanley, deceased, to recover the amount due upon a promissory note for $1,130.60, purporting to have been executed by the said Hanleys to Alfred J. Burk, or bearer, on the 20th day of February, 1858. The defendant filed a plea of non est factum under oath. Pas. Dig. art. 1443, note 549.

The cause came to trial at the summer term, 1860, when the plaintiff was permitted, notwithstanding the objections of the defendant, to put in evidence other notes and documents bearing the signatures of the Hanleys. There was other evidence introduced by both parties, but it was not referred to in the opinion of this court. The jury found in favor of the plaintiff, and judgment was rendered accordingly. The defendant's motion for a new trial was overruled, and he appealed, assigning for error the admission of the other notes and documents.

J. W. Ferris, for the appellant. Can the jury compare the signatures of the different papers before them, and decide regardless of the testimony of the witnesses? If so, why introduce witnesses at all? Could not certain signatures be selected, bearing the nearest resemblance, and be foisted suddenly upon a jury with no notice to defendants? Would such be a just and fair rule? Documents irrelevant to the issues on the record cannot in any case be received in evidence for the purpose of comparison by the jury. This is the modern wellestablished English rule. 2 Phil. Ev. 4th Am. ed. 616; Bromage v. Rice, 7 Car. & P. 548; Doe v. Luckermore, 5 Adol. & Ell. 703; 2 Greenl. Ev. § 580, and note, with cases cited. The American cases are equally clear against a comparison by the jury. 9 Cow. 94, 112;1 Leigh, 216;2 Id. 249;6 Rand. 106; Id. 316; 3 Halst. 87;1 Dana, 179, 181;14 Serg. & R. 372;3 Watts, 321;11 Serg. & R. 333;3 N. H. 47.

A. Bradshaw, for the appellee, cited 11 Mass. 309;10 Id. 1;5 Vt. 532;2 Johns. Cas. 211;1 Pa. 161;10 Serg. & R. 110;5 Johns. 144;17 Pick. 490;21 Pick. 315;6 Wheat. 284.

DONLEY, J.

The pleadings of the defendant having put in issue the execution of the note, the plaintiff offered to submit to the jury other notes and signatures of the appellant, and the deceased, J. A. Hanley, to prove by comparison the signatures to the note in controversy. The appellant objected, because the writings offered were not admitted to be genuine, were not papers connected with the cause, and that the jury should not decide by a comparison of writings. The objections were overruled, and the papers were submitted to the jury with the other evidence in the cause.

The most satisfactory testimony of handwriting, where the party alleged to have executed the instrument is incompetent to testify, is a witness who saw the instrument executed and is able to identify it. The next best testimony is that of witnesses who have seen the party, whose writing is in controversy, write, or have had access to or possession of his writings, so as to impress the character of the writing upon the mind, and are enabled to form an opinion by comparing the impression of the writing on their minds with that which may be submitted for their examination; and while a comparison is made of the impression on the mind with the paper submitted for examination, it is clear that this is not such a comparison as is referred to when it has been held that it was not competent to prove handwriting by comparison. The exemplar which is upon the mind must of necessity be compared with the writing which may be submitted for examination. No objection has been suggested to this course; the objection to proof by comparison is, when two writings are submitted to the witness, who has no previous acquaintance with either, to say upon examination, by placing them in juxtaposition, whether the writings were executed by the same person. Upon this question the authorities are to some extent conflicting.

In Phillips on Evidence, vol. 2, p. 609, it is said: “The proof of handwriting is founded on the knowledge of the general character. The witness is supposed to have formed a standard in his mind, and with that standard to compare the writing in question. But a witness will not be allowed to state to a jury the conclusion or belief of his mind as to a piece of handwriting being that of a particular individual, when that conclusion is made for the purpose of the issue by means of a comparison of the disputed writing with another written specimen of the same individual produced in court.”

This principle, it is believed, is sustained by weight of authority, and more certainly secures juries from imposition. It is possible an attempt might be made, in selecting the writings which may be submitted by an interested party for the purpose of establishing or disproving a writing, to select specimens that may mislead. In England, it is believed that the rule is well established that it is not competent to prove handwriting by comparison. In Mudd v. Luckamore, 31 Eng. C. L. 795, the court says: “Now, in the present case, it must be conceded, that the witness had not acquired his knowledge of the character of the handwriting, whatever it was, in either of the ordinary modes. He had studied certain signatures selected by one party, and had acquired an impression of some general character pervading the whole; he had heard it proved that those were written by the witness, Stribling, and from these materials he was to speak. It is asked, how does this differ from the case of knowledge acquired in the course of a correspondence, where the standard rests equally on the assumption that the letters are written by the party whose they purport to be? With respect to the assumption, there will be a fitter place to point out the distinction; but I answer here, that the two cases differ in that which is essential, in the undesignedness of the one, the fact that the letters are written in the course of business, without reference to their serving as aids to a collateral purpose in some future unknown cause, and in the selection which is made in the other by the party to the cause, who seeks to produce them for a particular purpose.” Clermont v. Tulledge, 4 Car. & P. 1; Grams v. Hunter, 2 Id. 477; Eagleton & Coventry v. Kingston, 8 Ves. 474, 475.

In Strother v. Lucas, 6 Pet. 766, it is said that “it is a general rule, that evidence by comparison of...