State v. Farrington

• Decision Date: 24 January 1894
• Citation: 90 Iowa 673,57 N.W. 606
• Parties: STATE v. FARRINGTON.
• Court: Iowa Supreme Court

90 Iowa 673

57 N.W. 606

STATE

v.FARRINGTON.

Supreme Court of Iowa.

Jan. 24, 1894.

Appeal from district court, Jones county; James D. Giffen, Judge.

The defendant was indicted, convicted, and sentenced for the crime of forgery, and appeals.J. W. Jamison and W. P. Wolf, for appellant.

John Y. Stone, Atty. Gen., Thos. A. Cheshire, and F. O. Ellison, Co. Atty., for the State.

KINNE, J.

1. The charging part of the indictment in this case is: “Philip Farrington, at and within said county, and before the finding of this indictment, to wit, on the 24th day of February, did have in his custody and possession a certain bill of exchange or draft, which said bill of exchange was and is as follows, that is to say: ‘$780.00. First National Bank, No. 64,813. Tipton, Iowa, 1-10-1890. Pay to the order of Philip Pfarr ($780.00) seven hundred eighty dollars. To Hide and Leather National Bank, Chicago, Ill. C. W. Hawley, Cashier.’ And on the back of said bill of exchange was then and there written a certain forged indorsement of the said bill of exchange, which said forged indorsement is as follows, that is to say: ‘Philip Pfarr;’ he, the said Philip Farrington, well knowing the said indorsement to be forged on the day and year last aforesaid, in the county aforesaid, willfully and feloniously did utter and dispose of, and publish as true, the said indorsement of the said bill of exchange, so indorsed, with intent then and there to defraud one E. E. Snyder, contrary to and in violation of law.” To this indictment, defendant pleaded not guilty. He appeals.

2. It is contended that the court erred in overruling defendant's motion for a continuance. This motion was based upon the absence of one Bardwell, a resident of Colorado; one Eaton, a resident of Wilton Junction, Iowa; and Louisa Kalb, a resident of Crawford county, Iowa. As to the witness Bardwell, it is shown that defendant knew he was a resident of the state of Colorado; that prior to March 1, 1891, Bardwell had informed defendant that he would be in Tipton about the latter date, and would remain there until April, 1891; that defendant had intended to take his deposition, but, on learning that he was coming to Tipton, did not do so. A subpoena was issued for this witness; but when, it does not appear. Eaton is also said to be a material witness for the defendant. It seems a subpoena was issued for him, but the record before us fails to show when it was done. Louisa Kalb lives beyond the reach of a subpoena. She had been in Cedar county for three months, and, it is averred, expected to remain until after the March term of the Jones district court for 1891, but was called home, and, though expecting to return, has not done so. Even if it be conceded that the proposed testimony of these three witnesses is material and competent, still the court did not err in its ruling. This record discloses the fact that this case had been tried once before; that the defendant was arrested about a year prior to the last trial. It must be presumed, then, in the absence of a showing to the contrary, that defendant was fully conversant with the witnesses he would need on the trial for a sufficient length of time to have taken their depositions, or, if within the reach of a subpoena, to have had it served in due time. There is no sufficient excuse offered for failing to take the deposition of any of these parties. There is no diligence shown in attempting to secure these witnesses, or their depositions. No effort was ever made to take Eaton's deposition, nor does it appear when the subpoena was issued for him. Louisa Kalb, in fact, stayed in Cedar county until a week before this application was filed, and then went home, to Crawford county. It does not appear when the subpoena was issued for her. The facts show negligence on part of the defendant in not securing this evidence. Again, the application does not conform to the requirements of the statute, in this: that it fails to state facts and show reasonable grounds for believing that the attendance or testimony of the witnesses will be procured at the next term of court, and this the statute requires. Code, § 2750. The motion was properly overruled.

3. Hawley, the cashier of the bank that sold the draft to Jacob Pfarr, the indorsement of which it is claimed was forged, was asked as to the facts surrounding the purchase. On cross-examination, defendant attempted to show by the witness that, a week or 10 days after the purchase of the draft, Jacob Pfarr went to the bank, and ordered payment on said draft stopped. This was clearly not cross-examination. The witness had not been interrogated on his examination in chief as to the matters sought to be shown on cross-examination. The ruling of the court was therefore correct.

4. N. B. Anthony, a witness for the state, testified that he had lived in Stanwood 21 years, and was in the mercantile business; that he had known the defendant for 20 years; was somewhat acquainted with his handwriting, having seen him write. He was then asked to look at the signature in controversy, and state whether or not, in his opinion, it was in defendant's handwriting. Defendant's counsel objected to the question as calling for incompetent testimony. The objection was overruled, and the witness answered, “It looks some like his.” Defendant moved to strike the answer because it disclosed that the witness was incompetent to testify upon the subject inquired about, and because the evidence was incompetent. This motion was overruled. The examination then proceeded as follows: “Q. Mr. Anthony, what is your best judgment as to whether that is his handwriting?” Same objection, and overruled. “A. Of course, I wouldn't swear that that is his handwriting unless I saw him put it there. Q. No, of course; but what is your best judgment as to its being his handwriting?” To this the same objection was made, and same ruling had. “Well, sir; I should think it very similar to his handwriting. Q. But you will have to answer the question, Mr. Anthony.” Defendant's counsel moved the court to strike out all the answers of the witness, as being incompetent. The motion was overruled. “Mr. Anthony, I want you to state what is your best judgment as to whether or not that is his handwriting. It is not a question of similarity. A. Well, I should say that it is in his handwriting. It is very similar to his handwriting. But, as to saying that it is positively in his handwriting, I couldn't say that without seeing him write it.” Here the motion to strike the answers was renewed and overruled. To all these rulings the defendant at the time excepted. Having in view the entire examination of this witness, we do not think the court erred in its rulings. The rulings are assailed upon two grounds: First, because the witness was not shown to be an expert, and qualified to testify; and, second, that the testimony in fact given was incompetent. There can be no question as to his being a competent witness. He had shown that he had been acquainted with defendant for 20 years; that he was acquainted with his handwriting, and had seen him write. In Hyde v. Woolfolk, 1 Iowa, 167, it is held that in such cases the competency of a witness as an expert does not depend upon his having followed a particular calling, but rather “on his means of knowledge, as a business man, and his intelligence.” Every fact necessary to be established in the first instance to show his competency had been shown. It is now almost the universal rule that one who has seen a party write is competent to give an opinion as to the genuineness of his signature, in a proper case. 1 Greenl. Ev. § 577; Egan v. Murray, 80 Iowa, 182, 45 N. W. 563;Succession of Morvant, 45 La. Ann. 207, 12 South. 349;State v. Zimmerman, (Kan.) 27 Pac. 999; De La Motte's Case, 21 How. St. Tr. 810; Miles v. Loomis, 75 N. Y. 288;Bell v. Brewster, 44 Ohio St. 690, 10 N. E. 679;State v. Gay, 94 N. C. 814;State v. Stair, 87 Mo. 268;Long v. Little, 119 Ill. 600, 8 N. E. 194;Hopper v. Ashley, 15 Ala. 457;Moon v. Crowder, 72 Ala. 79;Woodman v. Dana, 52 Me. 9;Bank v. Armstrong, 66 Md. 113, 6 Atl. 584; Rog. Exp. Test. (2d Ed.) § 122. All the answers of the witness set out, except the last, were not responsive to the questions asked; and if it should be conceded that they were incompetent,--a question we do not find it necessary to decide,--and that the court erred in not striking them out, still the error was without prejudice to the defendant. The last answer was both responsive and competent, and it embraced all and more than was in the...