Spencer v. State

• Decision Date: 05 February 1958
• Docket Number: No. 29565,29565
• Citation: 72 A.L.R.2d 304,147 N.E.2d 581,237 Ind. 622
• Parties: , 72 A.L.R.2d 304 John SPENCER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 581

147 N.E.2d 581

237 Ind. 622, 72 A.L.R.2d 304

John SPENCER, Appellant, v. STATE of Indiana, Appellee.

No. 29565.

Supreme Court of Indiana.

Feb. 5, 1958.

Emmanuel Baugh, Evansville, John G. Bunner, Evansville, of counsel, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Stanley B. Miller, Deputy Attys. Gen., for appellee.

ARTERBURN, Judge.

This is an appeal by John Spencer, appellant, from a conviction of forgery in the Vanderburgh Circuit Court. Appellant, by way of motion for a new trial, assigns a number of errors, only a part of which are relied upon in his brief. The first of these discussed is that during the trial, members of the police department, prosecuting staff, investigators, and the public generally mingled with the jury and passed through the room where the jury was waiting during recesses and intermission periods and that it was possible for the jurors to overhear statements and comments of spectators and interested persons concerning the trial. The appellant presented statements to support his contention. There is no showing, however, that the appellant made any objections to the existing condition during the trial, although the condition was as apparent to the appellant and his counsel as to any other person. We do not approve of the practice of permitting the jury to mingle freely with the spectators and those participating in the trial during the trial, under the conditions stated. However, it is incumbent upon the appellant to make prompt objections to such practice and to request that remedial measures be taken by the court. The appellant may not wait until the outcome of the case is known before making an objection. An examination of the record shows that the appellant made a motion during the examination of the jury on voir dire 'to require all prospective jurors already seated in the jury box or already questioned to be required to be kept in the room by themselves', but never renewed the motion as to the jury finally chosen to try the case. We therefore have no erroneous ruling properly presented to us on this appeal upon the practice attempted to be questioned.

Woods v. State, 1954, 233 Ind. 320, 119 N.E.2d 558 is not in point, since in that case during the trial, promptly, the defendant objected to the visiting between witnesses and the jury at intermission time. Blanton v. State, 1954, 233 Ind. 51, 115 N.E.2d 122, 116 N.E.2d 631; Miller v. State, 1953, 232 Ind. 578, 115 N.E.2d 120.

The remaining points urged by the appellant relate to the exclusion of certain evidence offered by the appellant. The appellant, defendant below, offered as an exhibit in evidence a photostatic copy of the check on which the state predicated its charge of forgery and also a photostatic enlargement of the same check. These exhibits were properly identified. They were offered for the purpose of affording a basis of comparison of the enlargement. The pellant by way of the enlargement. The state objected to these reproductions and photostatic copies and the court sustained the objection and excluded this evidence. The same exhibits were again offered in cross-examination of the state's handwriting expert, Edwin C. Schroeder, and were again excluded. This was prejudicial error. It is well-settled that enlarged photographs or copies, properly identified, may be introduced in evidence where the issue is one of questioned documents or handwriting. This is particularly true for the purpose of cross-examination, although not limited thereto. Magnifying glasses, microscopes and other instruments, it goes without saying, may be used for the purpose of better detection, observation and information of witnesses and the jury. Underhill's Criminal Evidence, 5th Edition (Herrick), Vol. 1, § 117, p. 223; Alexander v. Blackburn, 1912, 178 Ind. 66, 98 N.E. 711; 3 Wigmore on Evidence, 3 rd Edition, p. 178; 23 C.J.S. Criminal Law § 852, p. 51; Hawkins v. State, 1941, 219 Ind. 116, 37 N.E.2d 79; McDonald v. State, 1954, 233 Ind. 441, 118 N.E.2d 891.

Appellant further states that he offered the testimony of witness LaMar, who stated that he knew the appellant's handwriting and was acquainted with it and that he had seen the appellant write 'whole pages of orders'. The state objected to the question asked this witness if he thought the handwriting on the check in question was the handwriting of the appellant. The ground of objection was that the witness was not an expert. The court erred in sustaining this objection to the prejudice of the appellant. One need not be an expert to give his opinion as to the genuineness of the handwriting of a person if he is familiar with such person's handwriting and has seen the person write.

Anyone who is familiar with a person's writing from experience, having seen him write, or having carried on correspondence with him or from the opportunities of having frequently handled and observed the person's handwriting, is competent as a nonexpert to give an opinion as to the genuineness of his signature or handwriting.

'So often does the subject of expert qualifications in handwriting come before the Courts that this subject is ordinarily thought of as exclusively one for experts. But a little reflection on every day's practice will demonstrate this error of thought. Where the witness is sufficiently qualified as to knowledge, i. e. where he has seen the person write or the like * * *, no dispute is ever raised as to his experiential competency. Proper familiarity with the standard of...