State v. Scott

• Decision Date: 31 January 1870
• Parties: STATE OF MISSOURI, Defendant in Error, v. SAMUEL W. SCOTT, Plaintiff in Error.
• Court: Missouri Supreme Court

45 Mo. 302

STATE OF MISSOURI, Defendant in Error,

v.SAMUEL W. SCOTT, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1870.

Error to First District Court.

Budd, for plaintiff in error.

A witness can not testify to the handwriting of a party from mere comparison with other writing proved to be genuine. (2 Phillips on Ev. 609-615, and notes; 4 Blackst. 358; The People v. Spooner, 1 Denio, 343; Jackson v. Phillips, 9 Cow. 112; Wilson v. Kirkland, 5 Hill, 182; Clark v. Wyatt, 15 Ind. 271; Jumpertz v. People, 21 Ill. 375; Bishop v. State, 30 Ala. 34; McNair v. Commonwealth, 26 Penn. St. 388; Outlaw v. Hurdle, 1 Jones, Laws N. C., 150; Hawkins v. Grimes, 13 B. Monr. 258, 267; Kinney v. Flynn, 2 R. I. 319; Smith v. Walton, 8 Gill, 77; McAllister v. McAllister, 7 B. Monr. 269; Pope v. Askew, 1 Ired. 16; Page v. Homans, 2 Shep. 478; Bank of Pennsylvania v. Holdeman, 1 Penn. 161; Hawkins v. Stuyvesant, Anthon, 97; State v. Givens, 5 Ala. 747; Bell v. Harper, Holt, 421.)

H. B. Johnson, attorney-general, for defendant in error.

The handwriting of two documents, or different portions of the same document, when they are already in evidence for other purposes, may be compared by the jury, with the aid of experts, for the purpose of showing that they were both written by the same person. (Doe v. Suckermore, 4 A. & E. 703; Hammond's case, 2 Greene, 33; Smith v. Sainsbury, 5 C. & P. 195; Cater's case, 4 Esp. 177; Griffiths v. Williams, 1 C. &. J. 47; Solita v Yarrow, 1 Mood. & R. 133; Doe v. Newton, 5 Ad. & El. 514; Bromage v. Rice, 7 C. & P. 548; Commonwealth v. Carey, 2 Pick. 47; Moodey v. Rowell, 17 Pick. 490; Hicks v. Person, 19 Ohio, 426; Richardson v. Newcomb, 21 Pick. 315; Lyon v. Lyman, 9 Conn. 55; Goodtitle v. Braham, 4 Tenn. 497; Waddington v. Cousins, 7 C. & P. 595; Van Wick v. McIntosh, 14 N. Y. 439; 1 Greenl. Ev., 12th ed., §§ 578-581; Depue v. Place, 7 Barr. 428; Rogers v. Shaler, Anthon, 109; Brooks v. Tichborne, 2 Eng. L. & Eq. 374.)WAGNER, Judge, delivered the opinion of the court.

The defendant was indicted and convicted in the Jackson County Circuit Court for passing a counterfeit and forged bank check. The main question here is the action of the court in admitting testimony on the part of the State. The check purported to be drawn on the Lexington (Ky.) National Bank, and was signed with the name of Geo. B. Lucas, as maker, and the name of the defendant was inserted in the body as payee. The defendant indorsed and delivered the check to one Sheridan, who saw him write the indorsement, and he afterward acknowledged that he wrote the check himself, and that Lucas was a myth, there being no such person in existence. On the trial, the State introduced two witnesses, who were bankers and who were permitted to state that in their opinion the indorsement and the check were in the same handwriting. This was objected to by defendant, and the objection overruled. The paper was then submitted to the jury for their examination. All evidence of handwriting, except where the witness saw the document written, is in its nature comparison, and founded upon opinion. It is the belief which the witness entertains, upon comparing the writing in question with its exemplar in his mind, derived from some previous knowledge. It is agreed that if the witness has the proper knowledge of the party's handwriting, he may declare his belief in regard to the genuineness of the writing in question. The point upon which courts have differed in opinion is upon the source from which this knowlege is derived, rather than as to the degree or extent of it. (1 Greenl. Ev. § 576.)

The modes of acquiring this knowledge, so as to permit the witness to testify as to the genuineness of the handwriting, are: first, by having seen the person write; and it is held sufficient for this purpose that the witness has seen him write but once, and then only his name. The proof in such case would be very light, but it would be proper for the jury to weigh it. The other mode is, from having seen letters, bills, or other documents, purporting to be the handwriting of the party, and having afterward personally communicated with him respecting them.

In Reyburn v. Bellotti, 10 Mo. 597, it was held that a witness may acquire such knowledge of a person's handwriting as to authorize him to testify to his signature by having seen his letters on business with a firm of which witness was clerk, and finding that he acted upon and recognized the letters.

But Greenleaf says the rule as above stated has been relaxed in two cases: first, where writings are of such antiquity that living witnesses can not be had, and yet are not so old as to prove themselves. Here the course is to produce other documents, either admitted to be genuine or proved to have been respected and treated and acted upon as such by all parties; and to call experts to compare them, and to testify their opinion concerning the genuineness of the instrument in question. Second, where other writings, admitted to be genuine, are already in the case. Here the comparison may be made by the jury, with or without the aid of experts. The reason assigned for this is, that as the jury are entitled to look at such writings for one purpose, it is better to permit them, under the advice and direction of the the court, to examine them for all purposes, than to embarrass them with impracticable distinctions to the peril of the cause. (1 Greenl. Ev. § 578.)

So Phillips, in commenting on the question, says: “Within a recent period a rule has been established which...