People v. Lambath, 117.

• Decision Date: 08 April 1941
• Docket Number: No. 117.,117.
• Citation: 297 N.W. 519,297 Mich. 349
• Parties: PEOPLE v. LAMBATH.
• Court: Michigan Supreme Court

297 Mich. 349

297 N.W. 519

PEOPLE

v.LAMBATH.

No. 117.

Supreme Court of Michigan.

April 8, 1941.

Ralph Lambath was convicted of breaking and entering a dwelling in the daytime with intent to commit larceny therein, and of larceny from a dwelling, and he appeals.

Affirmed.Appeal from Recorder's Court, of Detroit; George Murphy, judge.

Argued before the Entire Bench.

James A. Demoplos, of Detroit (A. Lewis Fineberg, of Detroit, of counsel), for appellant.

Herbert J. Rushton, Atty. Gen. and William E. Dowling, Pros. Atty. and Ralph E. Helper, Asst. Pros. Atty., both of Detroit, for appellee.

CHANDLER, Justice.

Defendant was convicted and sentenced for the crimes of breaking and entering a dwelling in the daytime, with intent to commit larceny therein, and of larceny from a dwelling, and prosecutes this appeal from such conviction.

It was claimed by the prosecution that he obtained certain articles of personal property, including a fur coat, from the dwelling in question, later disposing of them at a pawn shop in the City of Detroit.

One of the witnesses, a clerk in the pawn shop, testified that the pawn ticket, exhibit 3, was signed by defendant in his presence and that defendant signed the name ‘Ed Barrows' thereto. Thereafter, Francis B. Courtney, a handwriting expert, was permitted to testify that the handwriting on certain documents, exhibit 6, found in a brief case in defendant's possession at the time of his arrest, was, in his opinion, written by the same person who wrote the signature ‘Ed Barrows' on exhibit 3.

Defendant claims that it was error to permit the witness to so testify without first requiring proof that the handwriting on exhibit 6 was that of the defendant. Although the testimony is somewhat confusing, it appears certain that the point at issue was whether the same person who wrote exhibit 6 signed the pawn ticket, exhibit 3. If so, this would tend to implicate defendant who had been identified as the person who signed ‘Ed Barrows' to the pawn ticket.

It was not necessary to prove that exhibit 6 was in the handwriting of defendant before it could be properly compared with the signature on exhibit 3. The signature on the latter exhibit had been positively established as the handwriting of defendant, although he had assumed another name in signing the ticket. This exhibit, in evidence, could then be used as a basis for comparison to determine if exhibit 6 was in the same handwriting, and it was not error to permit the expert to so express an opinion. Vinton v. Peck, 14 Mich. 287;First Nat. Bank of Houghton v. Robert, 41 Mich. 709, 3 N.W. 199. See, also, People v. Parker, 67 Mich. 222, 34 N.W. 720,11 Am.St.Rep. 578;People v. Hutchings, 137 Mich. 527, 100 N.W. 753.

It is claimed that the court erred in giving the following instruction to the jury: ‘I received certain exhibits in evidence which were found in the car after the defendant's arrest, including a brief case in which there was some handwriting. I didn't receive the handwriting as positive proof of the defendant's handwriting. That is a matter of fact for you to decide if that was his handwriting.’

Defendant contends...