People v. Storrs

• Decision Date: 31 December 1912
• Citation: 207 N.Y. 147,100 N.E. 730
• Parties: PEOPLE v. STORRS.
• Court: New York Court of Appeals Court of Appeals

207 N.Y. 147

100 N.E. 730

PEOPLE

v.STORRS.

Court of Appeals of New York.

Dec. 31, 1912.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Thomas Storrs was convicted of forgery in the second degree, and from an affirmance thereof by the Appellate Division (152 App. Div. 901,136 N. Y. Supp. 1144), he appeals. Reversed, and new trial ordered.

William W. Waring, of Franklinville, for appellant.

George W. Cole, Dist. Atty., of Salamanca, for the People.

WILLARD BARTLETT, J.

The defendant has been convicted of the crime of forgery in the second degree, under an indictment charging him and one Cynthia Smith with having forged a certain instrument in writing with intent to defraud Irving E. Worden, as executor of the last will and testament of Milan J. Smith, deceased. The defendant was tried separately. Cynthia Smith is the widow of Milan J. Smith, by whom the instrument in controversy purports to have been signed. The instrument, with the exception of the signature, is in typewriting, and bears date the 21st of August, 1909, which was less than a month before the death of Mr. Smith. It recites that he had agreed with his wife, Cynthia, that, if she would marry him, he would settle upon her a sum of money or property as her separate estate, and that he had given her the diamonds she wore and household goods and furniture in his house, and purchased and given her his touring car, and delivered to her notes in the sum of about $3,400, which with the touring car, diamonds, and furniture aggregate about the sum of $6,000. It further recites that the signer has notes in the Exchange National Bank and money on deposit there, and has made his will setting apart to his wife the house in which they live and a sum of money for her use which he deems inadequate to recompense her for her interest in and service to him manifested in his sickness; and, in consideration of her said marriage with him and his agreement to set apart for her a sum of money, the instrument goes on to provide that he does thereby sell, assign, transfer, and set over enough of his notes which he now owns in said bank and of the money therein to make up the sum of $10,000, appraising the touring car at $2,000, the notes delivered at $3,400, the household goods, carpets, and furniture at $700, and the diamonds at $350, and he thereby directs the bank or those in possession to deliver to his wife out of said securities, notes, and money of her own choosing a sum sufficient to make up, together with the articles mentioned, the sum of $10,000, which he thereby gives her as a marriage settlement, and appoints her his agent to collect or settle the same.

Cynthia Smith was the second wife of Milan J. Smith. He married her on September 8, 1908, about one year after the death of his first wife. She had been married twice before, one of her husbands being dead and the other divorced. Milan J. Smith died on September 5, 1909, leaving a will and codicil executed in that year by which he gave to his wife, providing she did not remarry, the use of his dwelling house, stable, and grounds at Portville in Cattaraugus county during her lifetime, and the income derived from the sum of $6,000, out of which were to be paid taxes, insurance, and the expense of necessary repairs.

The defendant is a practicing lawyer now over 67 years of age, residing at Olean. The theory of the prosecution was that Mrs. Smith, being dissatisfied with the testamentary provision in her behalf under her husband's will, procured the defendant to concoct, write out, and sign the instrument in question, in order thereby to obtain a larger portion of her deceased husband's estate than she would otherwise receive. The issue arising upon the defendant's plea of not guilty was closely and bitterly contested upon the trial. In behalf of the prosecution evidence was introduced tending to show that the body of the instrument was written upon a typewriter belonging to the defendant, possessing peculiar mechanical characteristics which established its identity by means of the character of the work produced thereon. Several business men who were familiar with the handwriting of Milan J. Smith by reason of their dealings with him testified that in their opinion the signature to the instrument in question was not genuine; and there was also opinion evidence from a handwriting expert to the same effect. On the other hand, the defendant utterly denied all part or lot in the preparation of the paper. He produced at least six witnesses who testified to having seen Mr. Smith actually sign the document; and a large number of checks bearing Mr. Smith's unquestioned signature were introduced for purposes of comparison in order to satisfy the jury of the genuineness of the signature to the instrument in controversy.

It was important, if not essential, to the case for the prosecution to prove that the body of the document was produced by the use of the defendant's typewriting machine. For this purpose the district attorney was permitted, over the defendant's objection and exception, to introduce in evidence another paper prepared by a witness who was at the time the defendant's law partner upon the defendant's typewriter. The contents of this paper were in no wise relevant to the issue on trial, and the paper was received, as the learned county judge stated, not so much as a standard for the comparison of handwriting as upon the principle that, where an impression is made upon paper, wood, leather, or any other plastic material by an instrument or mechanical contrivance having or possessing a defect or peculiarity, the identity of the instrument may be established by proving the identity of the defects or peculiarities which it impresses on different papers.

Section 961d of the Code of Civil Procedure, amended so as to take effect in its present form on February 17, 1909, provides as follows: ‘Comparison of a disputed writing with any writing proved to the satisfaction of the court to be the genuine handwriting of any person, claimed on the trial to have made or executed the disputed instrument, or writing, shall be permitted and submitted to the court and jury in like manner.’ Formerly the comparison of disputed handwriting with unquestionable specimens was permitted only when the latter had been admitted in evidence for other purposes, as relevant to the issue, or without objection. Miles v. Loomis, 75 N. Y. 288, 31 Am. Rep. 470. The history of subsequent legislation on the subject and the interpretation of such legislation by the courts will be found fully narrated and explained in the opinion of Judge Werner in People v. Molineux, 168 N. Y. 264, 318,61 N. E. 286,62 L. R. A. 193. I think it may well be doubted whether typewriting can be deemed handwriting within the meaning of the existing statute. Nevertheless,I think the law sanctions the reception of the evidence in question, substantially on the theory adopted by the trial judge. If the impression of a seal were in controversy, it would surely be competent to show by other impressions from the same sealing instrument that the impression was invariably characterized by a particular mark or defect. Impressions made by a shoe, for the sole and very purpose of comparison, would undoubtedly be competent evidence in a prosecution for burglary, where it was sought to identify the accused by means of his footprints. This evidence is quite analogous. Typewritten specimens were similarly received for the purpose of showing that certain disputed receipts could not have been produced by the typewriter on which they were alleged to have been prepared, in a case tried before Vice Chancellor Pitney of New Jersey in 1893. Levy v. Rust, 49 Atl. 1017, 1025. There the court was called upon to determine the character of certain receipts which were alleged to be forgeries. To assist him the vice chancellor took the testimony of ‘a gentleman who is employed by the vendors of typewriting machines to go about the country and examine typewriting machines and see whether they are out of order, and in that way his eye becomes very acute and quick to discover things that will escape the vision of a casual observer.’ This witness pointed out three defects in the machine on which the questionable receipts must have been written. The period mark was invariably too low. The letter ‘s' was ‘off its feet,’ and the ‘u’ was placed too far to the left. Specimens of typewriting done by the machine on which the receipts were said to have been written were produced for comparison, and in these specimens none of these defects appeared. Hence the vice chancellor concluded that they were written on a different and defective machine and were forgeries.

In the case of State v. Freshwater, 30 Utah, 442, 85 Pac. 447,116 Am. St. Rep. 853, a question arose as to whether certain typewritten letters were written by the defendant. He had sworn to several typewritten affidavits which had been filed in the case in support of a motion for a continuance. An expert in typewriting and in the mechanism of typewriting machines was held competent to testify to his opinion that these affidavits and the letters in controversy were written on the same typewriter. Both exhibited indications that they had been prepared by a machine on which the type were defective, broken, and out of repair and out of alignment, with excessive spacing. The witness had examined 24 typewriting machines in use at Provo City, Utah, where the letters were mailed, and but one of these had the same defective type which produced lettering, lining, and spacing in exact conformity with these peculiarities in the disputed letters. ‘He also testified that while it might be possible for two machines out of repair to have precisely the same defects, and to produce the same faulty printing in every respect that characterized the letters and affidavits mentioned, such a thing or coincidence was not at all probable.’

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