Hughes v. Holsclaw

• Decision Date: 06 October 1932
• Docket Number: 6 Div. 21.
• Citation: Hughes v. Holsclaw, 143 So. 564, 225 Ala. 374 (Ala. 1932)
• Parties: HUGHES ET AL. v. HOLSCLAW.
• Court: Alabama Supreme Court

143 So. 564

225 Ala. 374

HUGHES ET AL. v. HOLSCLAW.

6 Div. 21.

Supreme Court of Alabama

October 6, 1932

Appeal from Circuit Court, Jefferson County; C. B. Smith, Judge.

Action for alienation of affections by Priscilla Holsclaw against Claude E. Hughes and Myrtle Hughes. From a judgment for plaintiff, defendants appeal.

Reversed and remanded.

Horace C. Wilkinson, of Birmingham, for appellants.

Fort Beddow & Ray and G. Ernest Jones, all of Birmingham, for appellee.

BROWN J.

The sole purpose of the statute, Code 1923, § 7705, was to amplify the rule of evidence obtaining prior to its enactment, so as to authorize the introduction of testimony of witnesses who qualified as experts in handwriting, or witnesses shown to be familiar with the handwriting in question, after comparison by the witness of a disputed paper writing material to the issues in the case, with other writings admitted or shown to the satisfaction of the court to be genuine, whether such extraneous paper was material evidence or not, and to authorize the triors of the fact, the judge or the jury, to determine whether or not the disputed writing is or is not the handwriting of the person in question. King v. State, 15 Ala. App. 67, 72 So. 552; Bridgeforth v. Sharpe, 220 Ala. 188, 124 So. 416; Kirby v Brooks, 215 Ala. 507, 111 So. 235; Ex parte Williams (Williams v. State), 213 Ala. 145, 104 So. 44; Chisolm v. State, 204 Ala. 69, 85 So. 462.

No testimony was offered comparing the unsigned, undated letter made plaintiff's "Exhibit F-1"; nor was said letter offered for the purpose of comparison, but as independent evidence, material and relevant to the issues in the case, in connection with the testimony of the plaintiff, who testified without objection that she knew or was familiar with the handwriting of the witness Myrtle Hughes, and that said letter was, in her opinion, the handwriting of said defendant. Therefore the question presented by the defendants' objection to the letter is not within the influence of the statute. Code 1923, § 7705; Ex parte Williams (Williams v. State), supra; King v. State, supra.

Under the well-established rule of evidence, long prevailing before the enactment of the statute, and in no way affected by it, that, "When it becomes necessary to prove handwriting, any person having a previous knowledge of the writing of the supposed writer may express an opinion that the writing in question was or was not written or signed by him. The frequency or infrequency of the opportunities of the witness to acquire knowledge rendering him capable of expressing an opinion, or the nearness or remoteness of such opportunities, in point of time, to the time of his examination, are matters addressed to the credibility or weight, and not to the admissibility, of the evidence, and are for the consideration of the jury," the defendants' objections and motion to exclude were properly overruled. Karr v. State, 106 Ala. 1, 17 So. 328, 330; Griffin v. State, 90 Ala. 596, 8 So. 670; Nelms v. State, 91 Ala. 97, 9 So. 193; Everage v. State, 14 Ala. App. 106, 71 So. 983.

The plaintiff offered evidence tending to show that the defendants and Holsclaw acted in concert to force the plaintiff to move with her belongings from the premises occupied by the plaintiff and her husband as a place of residence; that the attachment proceedings instituted by Hughes, "friendly" as between defendants and Holsclaw, were a part of the scheme to separate the plaintiff from her husband, and at the same time to enable Holsclaw and his belongings to enjoy the premises, where he would be near and accessible to the defendants. Where, as here, the burden was on the plaintiff to show malice, the fact of the attachment proceedings, the use that was made of them according to some of the tendencies of the evidence, and the subsequent dealings of the parties with the property levied on, were material as giving character to the acts and conduct of the...