State v. Skillman

• Decision Date: 12 June 1908
• Citation: 70 A. 83,76 N.J.L. 464
• Parties: STATE v. SKILLMAN.
• Court: New Jersey Supreme Court

70 A. 83

76 N.J.L. 464

STATE

v. SKILLMAN.

Supreme Court of New Jersey.

June 12, 1908.

Error to Court of Quarter sessions, Somerset County.

William H. Skillman was convicted of uttering a forgery, and he brings error. Affirmed.

Argued February term, 1908, before GUMMERE, C. J., and BERGEN and MINTURN, JJ.

Clark & Case, for plaintiff in error.

John F. Reeger, for the State.

MINTURN, J. The defendant was indicted upon the charge of forging and uttering a paper writing purporting to be the last will and testament of William Lanehart, deceased, and was found guilty by the jury of the uttering. The writ of error presents certain exceptions taken at the trial by defendant, relating almost entirely to the admissibility of testimony. The first and second of these exceptions relate to the admission of the testimony regarding the execution of what was called in the case the "Race Will," a document proved to have been executed by deceased in the city of New York, in and by which, after making certain specific bequests to friends and relatives, and $3,000 to his sister Mary J. Lanehart, he directed that the residue of his estate be divided equally among his brothers and sisters, and appointed John N. Race and Laura Kellogg, his executor and executrix, respectively.

The admission of this will was competent. It was within the line of proof for the state to introduce the will for the purpose of establishing the fact that the testator had executed and preserved a prior will, radically inconsistent with the provisions of the document drawn by the defendant; and the Race will being in evidence for that purpose could be used by the state as a standard for comparison by the jury of the defendant's handwriting. In England this rule is established and liberalized by an act of Parliament (28 Vict, c. 18). But whatever diversity of judicial opinion may exist in this country upon the admissibility of writings otherwise irrelevant to the issue solely for the purpose of comparison, there is quite a uniformity of opinion that a genuine writing in evidence for one purpose may be properly used as a standard of comparison by the jury to determine the genuineness of the handwriting of another document in issue. Yoemans v. Petty, 40 N. J. Eq. 495, 4 Atl. 631; Shaw v. Bryant, 157 N. Y. 715, 53 N. E. 1132; Himrod v. Gilman, 147 Ill. 293, 35 N. E. 373; Stephens' Dig. § 289; 17 Cyc. 103, and cases.

The court admitted against objection photographic reproductions of the disputed will and signatures, and other signatures of the size of the originals, which were in evidence, and also photographs of letters, containing the signature enlarged 24 times without a like enlargement of a standard signature, and this admission forms the basis of an assignment of error, upon which defendant cites the case of Howard v. Ill. Trust Co., 186 Ill. 568, 59 N. E. 1106. That authority approves the admission of enlarged photographs as evidence, upon the ground that they make the proportions plainer, and to that extent it is consistent with the weight of authority. Marcy v. Barnes, 16 Gray (Mass.) 161, 77 Am. Dec. 405; 17 Cyc. 414, and cases cited; Rowell v. Fuller's Est., 59 Vt. 688, 10 Atl. 853. But we cannot give adherence to the view that photographic copies of a disputed document are inadmissible, because the original has been admitted. If such copies were offered as substantive proof of the original document they would be clearly inadmissible. But where the sole purpose is to use the photographs to illustrate and elucidate a contention which forms the gravamen of the case, such procedure seems to be as reasonable as the use of a magnifying glass would be for the same purpose.

We find no ground for complaint in the third assignment of error which is based upon the exclusion by the court of certain testimony which the defendant attempted to elicit from cross-examination of the witness Mary M. Steels, who was called by the state to prove certain admissions and statements made by the defendant in a contest over the will in question in the orphans' court of Somerset county. It is manifest that the questions upon cross-examination refer to another period than that involved in the examination in chief, and were therefore properly excluded. It may be further said that the court's action in this particular, as in other instances throughout the trial of the case, is not properly before this court for review, as the record indicates that no reason was given at the trial for the exception taken. Columbia Delaware Bridge Co. v. Giesse, 38 N. J. Law, 39; State v. Hendricks, 70 N. J. Law, 41, 56 Atl. 247.

A witness, McMurty, who qualified as an expert, testified that the signatures of the alleged will and a genuine signature were not written by the same person. When asked whether he had had any experience with signatures first written in pencil and then 1 raced over with ink, he replied in the negative. He was then asked whether he was competent to pass upon that kind of a signature. The question was objected to and properly overruled, because, by his own admission, he was not qualified. Defendant then moved to strike out the testimony, which motion was refused. We perceive no error here, for the witness was qualified to express an opinion eliminating the tracing, and the state could not at that time foresee that the pencil marking was not to be disputed.

Miss Kellogg was allowed, against objection, to testify to a conversation had with the testator regarding the defendant, during the year 1905. The question called for a conversation regarding Mr. Skillman, the defendant, but was objected to and allowed; and the witness said that the testator told her that the defendant undoubtedly burned his barns in order to get the insurance money. This evidence was admitted after the defendant had cross-examined the witness regarding the social relations of testator and defendant, and had her testify over objection that they were friendly. In view of this circumstance, and of the fact that the record shows that the object of the question was to contradict the fact that the relations were intimate between defendant and testator as brought out by the cross-examination, the defendant should have given the court the reason for his objection. Still, if this had been done, the evidence was competent in denial of a fact introduced by the defendant.

Objection was also made to the testimony of Hagaman regarding the relations between the testator and defendant. This subject was opened by the defendant on cross-examination of Miss Kellogg. We think it was competent to show that the parties were not friendly as stated in the disputed will, the inference being that the testator would hardly refer to defendant as his friend, if his state of mind was such...