People v. Clark
| Decision Date | 22 February 1922 |
| Docket Number | No. 14342.,14342. |
| Citation | 134 N.E. 95,301 Ill. 428 |
| Parties | PEOPLE v. CLARK. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; Joseph B. David, Judge.
Charles Clark was convicted of larceny, and he brings error.
Reversed and remanded.Leslie A. Needham, of Chicago (David K. Tone, of Chicago, of counsel), for plaintiff in error.
Edward J. Brundage, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and Floyd E. Britton, of Springfield (Edward E. Wilson, Henry T. Chace, Jr., and Clyde C. Fisher, all of Chicago, of counsel), for the People.
A special model four-passenger Cadillac automobile of the value of $4,000, the property of Edward Hess, was stolen in Chicago some time before noon on Firday, April [301 Ill. 430]23, 1920. The car was recovered by the police of Chicago about 9 o'clock in the evening of April 25. It was standing in front of the home of George Wernicke, and was in the possession of him and Isadore Regal. These two men were arrested, and, as a result of statements made by them, Charles Clark, plaintiff in error, was arrested and indicted. The indictment was in two counts, and charged plaintiff in error with larceny of the automobile and with receiving stolen property. The second count was nolle pros'd by the state's attorney and the jury returned a verdict of guilty in manner and form as charged in the first count of the indictment, and pursuant to instructions of the court they fixed the punishment at imprisonment in the penitentiary and a fine of $500, in accordance with the provisions of section 39 of the Motor Vehicle Law (Hurd's Rev. St. 1919, c. 121, § 269zm). Wernicke and Regal were not indicted. Plaintiff in error prosecutes this writ of error to review the judgment of the criminal court.
Wernicke testified that plaintiff in error was a practicing physician, and that he had attended his family for 15 years; that plaintiff in error told him early in January that he could sell him a Packard automobile at a low figure; that they had several conversations about the matter; that in March and April plaintiff in error called him on the telephone and told him that he could get a good car for $1,400; that he talked with Regal about the matter, and Regal agreed to look at the car; that plaintiff in error said the car must be brought from Detroit, and that he required a deposit of $200; that Regal gave him a check for $200, which he delivered to plaintiff in error, who gave his receipt therefor, signed ‘Frank Morton’; that plaintiff in error told Wernicke the machine would be delivered around the corner from his office about 8:30 in the evening of April 24; that he and Regal were at the appointed place at 8:30, and saw the machine driven to the place by a man and a woman, who got out of the car and walked away; that he then went to the office of plaintiff in error and paid him the balance of $1,200 with twelve $100 bills; that he went back to the car, and he and Regal got into it and found it locked; that just as he was preparing to leave the car, and go to the office of plaintiff in error, the latter appeared with a key and gave it to him; and that he unlockedthe car with the key and drove away. Plaintiff in error denied any connection whatever with the larceny of the automobile, the receipt of the check or the money, or the making and giving of the receipt. The check and the receipt were marked for identification, and were received in evidence, but were not read to the jury in open court. There was other evidence introduced, but what we have stated is sufficient for the purposes of this opinion.
The only corroboration of the testimony of Wernicke and Regal connecting plaintiff in error with this crime was the opinions of expert witnesses that the receipt was written by him. Other writings proven to be those of plaintiff in error were introduced in evidence for the purpose of comparison. None of these were read to the jury in the courtroom. The court refused to permit counsel for plaintiff in error to read and exhibit them to the jury, and to call their attention to certain points of difference, during the course of their argument. The court permitted the jury to take with them, when they retired to consider their verdict, the check, the receipt, and the writings introduced, for the purpose of comparison. This was error. Section 8 of division 13 of the Criminal Code (Hurd's Rev. St. 1919, c. 38, § 428) provides that--
‘All trials for criminal offenses shall be conducted according to the course of the common law, except when this act points out a different mode, and the rules of evidence of the common law shall also be binding upon all courts and juries in criminal cases except as otherwise provided by law.’
Section 76 of the Practice Act (Hurd's Rev. St. 1919, c. 110), which provides that ‘papers read in evidence, other than depositions, may be carried from the bar by the jury,’ is applicable only to civil cases. Dunn v. People, 172 Ill. 582, 50 N. E. 137. The court erred in permittingthese papers to be taken by the jury, first, for the reason that they were not read in evidence so that the jury knew their contents before they had taken the case; and, second, the papers, introduced solely for comparison, could not have been taken by the jury under the mode of procedure established by the common law, and there was no provision of the Criminal Code authorizing such papers to be taken. In a criminal case a jury may take with them only those objects which are directly connected with the subject of judicial investigation, and it rests in the discretion of the trial judge whether these objects may be carried from the bar by the jury. Dunn v. People, supra; People v. Morris, 254 Ill. 559, 98 N. E. 975.
In the absence of a statute authorizing it the law is well settled in this and other jurisdictions that the genuineness of a signature or writing cannot be proved by comparing it with other admittedly genuine signatures or handwriting not admissible in evidence for other purposes or not already a part of the record. Jumpertz v. People, 21 Ill. 375;Himrod v. Gilman, 147 Ill. 293, 35 N. E. 373;Stitzel v. Miller, 250 Ill. 72, 95 N. E. 53,34 L. R. A. (N. S.) 1004, Ann. Cas. 1912B, 412;People v. Parker, 67 Mich. 222,34 N. E. 720, 111 Am. St. Rep. 578; Hickory v. United States, 151 U. S. 303, 14 Sup. Ct. 334, 38 L. Ed. 170;Stokes v. United States, 157 U. S. 187, 15 Sup. Ct. 617, 39 L. Ed. 667. In 1915 the Legislature passed an act which, with certain limitations, authorized the proof of handwriting by comparison with writings properly in the files or records of the case, admitted in evidence, or treated as or admitted to be genuine, or proved to be so to the satisfaction of the court. Laws of 1915, p. 440. This new rule of evidence applies to the trial of criminal cases, but it does not change the practice with respect to the right of the jury to take physical objects, introduced in evidence from the bar of the court. The rules of practice must be changed by amendments to the Criminal Code, but the rules of evidence may be ‘otherwise provided by law.’
The Constitution (article 2, § 9) guarantees that ‘in all criminal prosecutions the accused shall have the right to appear and defendin person and by counsel’ and ‘to meet the witnesses face to face.’ In applying the new rule of evidence permitting proof of handwriting by comparison the trial court should guard the rights of the accused with unusual care. The act provides that the accused and his attorney shall have reasonable notice of the purpose of the state to prove the handwriting of the accused by comparison and that he shall have reasonable opportunity to examine the standards proposed to be used. It is necessary that these rights should be strictly enforced in order that the accused and his counsel may be properly prepared to defend against this character of evidence, which is unusual and may raise a collateral issue. Each juror should be given opportunity to examine the signature or handwriting to be proven and to compare it with the standards received in evidence, and counsel for the accused should be given full opportunity to discuss the question before the jury.
The constitutional provision that the accused shall have the right to meet the witnesses face to face means that all evidence in a criminal case must be produced in the presence of the accused. To permit the jury to take the writings from the bar of the court, and to read and compare them for the first time while they are considering their verdict, is to permit them to receive evidence after the cause has been submitted to them for decision, and amounts to a denial to the accused of the right to appear and defend against such evidence and...
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...signing the instrument, and in such case the exhibits should be read and shown to the jury. The defendant also relies upon People v. Clark, 301 Ill. 428, 134 N.E. 95, where we reversed a conviction of larceny, because the judge sent standards of handwriting used for comparison to the jury r......
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