State v. Brassfield

• Decision Date: 16 April 1921
• Citation: 33 Idaho 660,197 P. 559
• Parties: STATE, Respondent, v. FRANK M. BRASSFIELD, Appellant
• Court: Idaho Supreme Court

197 P. 559

33 Idaho 660

STATE, Respondent, v. FRANK M. BRASSFIELD, Appellant

Supreme Court of Idaho

April 16, 1921

EVIDENCE-COMPARISON OF WRITINGS-TIME-BOOKS AS BOOKS OF ORIGINAL ENTRY-FOUNDATION FOR INTRODUCTION-ALTERATION-REVERSIBLE ERROR.

1. In a criminal prosecution the state cannot introduce in evidence for use as a standard for comparison with a signature claimed to have been made by the defendant, checks which were drawn by a witness in favor of the defendant and which were subsequently returned to the witness with the purported signature of the defendant indorsed thereon, where it appears that the witness has never seen the defendant write, and that he has no knowledge of the defendant's signature other than the fact that his name purported to be indorsed on the checks when they were returned to the witness from the bank.

2. Before a specimen of handwriting is admissible in evidence as a standard of comparison, its genuineness must be admitted or shown by clear and undoubted testimony.

3. Regular entries in the due course of business are admitted as exceptions to the hearsay rule, but in order to bring such entries within the exception, a practical necessity must appear for their introduction and a substantial guaranty that the transactions actually took place as recorded.

4. A book of entries manifestly erased or altered in a material particular is not entitled to go to the jury as evidence in the absence of a satisfactory explanation of such alteration.

5. Where a bookkeeper is unable to vouch for the correctness of an entry upon a time-book, or of the time-slip from which it was made, and had no personal knowledge of the facts in the first instance, and it was not shown that she obtained such knowledge from an authentic report made to her in the regular course of business, and where no explanation was given of a manifest alteration upon the face of the time-book sheet nor of an apparent discrepancy in the amount of wages paid, and no proof has been made of the loss of the original slip, nor that better evidence was not obtainable, nor that the disputed entry upon the time-slip was made by the witness whose testimony is sought to be impeached thereby or by some other person, the admission of a sheet from such time-book bearing such entry constitutes reversible error, no proper foundation having been laid therefor.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.

Appellant was convicted of the crime of grand larceny. Reversed and remanded.

Reversed and remanded, with instructions.

Perky &amp Brinck, for Appellant.

Book entries as original evidence are incompetent evidence, unless the entrant is unavailable as a witness (Wigmore on Evidence secs. 1517-1561), unless under the "shop-book rule" applicable only in actions based on book accounts. Book entries are otherwise admissible only when refreshing recollection of witness, or known by witness to have been correct when made. (Wigmore on Evidence, sec. 747; Comer v. Nelson, 28 Misc. 793, 59 N.Y.S. 184.) The witness must have had personal knowledge of the facts in the first instance. (Wigmore on Evidence, sec. 747, n. 8; Carlton v. Carey, 83 Minn. 232, 86 N.W. 85.)

Aside from statute, exemplars for comparing handwriting cannot be admitted, unless otherwise material in the case. (State v. Seymour, 10 Idaho 699, 712, 79 P. 825.) Our statute as to exemplars authorizes their admission in evidence only when the genuineness of the writing is the matter in issue. (C. S., sec. 7971.) Before exemplars can be admitted, their genuineness must be so clearly proven that they can be said as a matter of law to be genuine. The proof must be conclusive. (Costello v. Crowell, 133 Mass. 352; State v. McGuff, 104 Wash. 501, 177 P. 316; Shannon v. Castner, 21 Pa. Super. Ct. 294.)

Where the exemplar is an indorsement on the back of a check, and there is no evidence that the payee made the indorsement, genuineness is not sufficiently proven. (Mississippi Lumber & Coal Co. v. Kelly, 19 S.D. 577, 9 Ann. Cas. 449, 104 N.W. 265.)

Roy L. Black, Attorney General, and James L. Boone, Assistant, for Respondent.

It is not necessary that witness have personal knowledge in the first instance of the facts set out in book entries. (Chamberlayne, Mod. Evid., secs. 3071, 3973, 3144, 2884, p. 4008 (administrative expedients), 2887; Jones, Com. Evidence, sec. 321, at pp. 747, 748; Wigmore on Evid., sec. 1521, p. 1889, secs. 152, 738.)

Book entries are admissible for purpose of refreshing recollection of witness when made in regular course of business, even where witness does not have an independent recollection as to dates thereon. (Morrow v. State, 56 Tex. Cr. 519, 120 S.W. 491; Chamberlayne, Mod. Evid., sec. 3061; Costello v. Crowell, 133 Mass. 352.)

Exemplars are competent evidence for the purposes of comparing handwriting. (State v. Seymour, 10 Idaho 699, 713, 79 P. 825; Bane v. Gwinn, 7 Idaho 439, 63 P. 634; State v. Bogris, 26 Idaho 587, 594, 144 P. 789; Greenleaf on Evidence, sec. 581.) Exemplars are admissible upon proof of genuineness. (Sec. 7971, C. S.) Proof sufficient for admission is knowledge gained in the course of business. (Jones, Com. Evid., sec. 366; Chamberlayne, Mod. Evid., secs. 2203, 2209, 2211; Greenleaf on Evid., sec. 577, p. 722.)

Where there is substantial evidence to support the verdict, the judgment based thereon will not be reversed on appeal. (State v. Askew, 32 Idaho 456, 184 P. 473; State v. Steen, 29 Idaho 337, 158 P. 499; People v. Tom Woo, 181 Cal. 315, 184 P. 389; Wells v. State, 16 Okla. Cr. 461, 184 P. 465.)

BUDGE, J. Rice, C. J., and Dunn and Lee, JJ., concur. McCarthy, J., did not sit at the hearing and took no part in the opinion.

OPINION

BUDGE, J.

Appellant was convicted of the crime of grand larceny. This appeal is from the judgment.

The record discloses that about January 17, 1917, one Chris Jensen, who was in charge of the Knudsen ranch at Eight Mile Creek, Ada county, discovered that four horses and two sets of harness in his charge, belonging to the firm of Morrison & Knudsen, were missing. On January 18th, he reported the loss to Morrison, who subsequently located the stolen property at Twin Falls, in the possession of Nick Smith, who on that day had purchased the horses and harnesses from a man representing himself to be Fred L. Brown, and gave his checks for $ 600 for the horses and for $ 70 for the harnesses. Appellant, who had formerly been an employee of Morrison & Knudsen, was identified by Nick Smith as the Fred L. Brown from whom he had purchased the horses and harnesses.

Of the numerous assignments of error, we shall consider but two, which are decisive of this appeal.

Assignment No. 2 involves the action of the trial court in admitting in evidence state's exhibits "F-1" to "F-6," as exemplars of the handwriting of appellant. These exhibits are checks which were given by Morrison & Knudsen to appellant and purport to have been indorsed by him. They were introduced by the state to further identify appellant as the same person who sold the horses and harnesses to Smith, and to whom Smith gave his checks for $ 600 and $ 70 under the name of Fred L. Brown. The state having introduced the two latter checks as state's exhibits "A" and "B," sought to prove by Morrison that the purported indorsements on exhibits "F-1" to "F-6" and those on exhibits "A" and "B" were all made by appellant.

While Morrison had seen appellant's alleged indorsements on the checks (state's exhibits "F-1" to "F-6") after they were returned from the bank, yet he had never seen appellant write. There was no evidence that appellant wrote the indorsements in question, and Morrison was able to testify only that the checks had been delivered to appellant by the company for labor, and that they had been returned to the company from the bank, bearing appellant's name indorsed thereon. Nevertheless, he was permitted to compare the indorsements upon state's exhibits "F-1" to "F-6" with those upon state's exhibits "A" and "B," and to testify that the latter were made by appellant.

We find no authorities which go to the extent of holding that the admission of such evidence is proper, and we think the correct rule is that in a criminal prosecution the state cannot introduce in evidence, for use as a standard for comparison with a signature claimed to have been made by the defendant, checks which were drawn by a witness in favor of the defendant and which were subsequently returned to the witness with the purported signature of the defendant indorsed thereon, where it appears that the witness has never seen the defendant write, and that he has no knowledge of the defendant's signature other than the fact that his name purported to be indorsed on the checks when they were returned to the witness from the bank. (Mississippi Lumber & Coal Co. v. Kelly, 19 S.D. 577, 9 Ann. Cas. 449, 104 N.W. 265.)

Our attention has been invited to C. S., sec. 7971, but in our opinion that section has no application to the facts in the present case. But even if the statute were applicable, the state has failed to bring itself within the terms of the statute, for the reason that the genuineness of the signature upon state's exhibits "F-1" to "F-6" was neither admitted nor proven by any competent evidence. The rule is well settled that before a specimen of handwriting is admissible in evidence as a standard of comparison, its genuineness must be admitted or shown by clear and undoubted testimony. (Bane v. Gwinn, 7 Idaho 439, 63 P. 634; State v. Seymour, 10 Idaho 699, 79 P. 825; State v. Bogris, 26 Idaho 587, 144 P. 789; State v. McGuff, 104 Wash. 501, 177 P. 316; Costello v. Crowell, 133 Mass. 352.)

Assignment ...