State v. Streit, 49011

• Decision Date: 15 January 1957
• Docket Number: No. 49011,49011
• Citation: 80 N.W.2d 318,248 Iowa 260
• Parties: STATE of Iowa, Appellee, v. Robert STREIT, Appellant.
• Court: Iowa Supreme Court

Page 318

80 N.W.2d 318

248 Iowa 260

STATE of Iowa, Appellee, v. Robert STREIT, Appellant.

No. 49011.

Supreme Court of Iowa.

Jan. 15, 1957.

Smith, Pogge & Stageman, and Roy W. Smith, Council Bluffs, for appellant.

Dayton Countryman, Atty. Gen., Dudley C. Lowry, Asst. Atty. Gen., and Matt Walsh, County Attorney, Council Bluffs, for appellee.

LARSON, Justice.

Defendant Robert Streit was indicted for uttering and publishing a forged check in violation of Section 718.2 of the Code of Iowa, 1954. A jury found him guilty and he was sentenced to the penitentiary for a term not to exceed ten years. Upon appeal he assigns as error the trial court's ruling permitting a bank cashier to testify as to his opinion of the sameness of signatures on a bank signature card and the uttered instrument before the court. While it is now contended such evidence was inadmissible, the defendant's objection made in the trial of the case, and upon which he must now rely for reversal, is as to the competency of the bank cashier to testify as an expert on handwriting in this matter. The trial court overruled defendant's objection and properly denied defendant's motion for a new trial based thereon. The judgment must be upheld.

At the trial the State produced the cashier of the Ralston Bank upon which the instrument was drawn and in which defendant had a personal checking account. The cashier, Mr. Littrel, testified he had been cashier or an assistant cashier in banks for over five years, and in the course of his duties he compares signatures on checks with the signatures on cards of bank depositors and he is able to distinguish differences in persons' handwriting. He stated he had compared the indorsement on the back of the uttered check and the signature on the bank signature card of the defendant, and had an opinion as to whether or not the signatures were the same. Upon being asked his opinion, counsel for defendant said: 'We object to that question for the reason that there has been no sufficient foundation laid to permit this witness to testify here as an expert. He is incompetent in that regard.' In response to the court's inquiry, 'Is that all,' counsel said, 'Yes, sir', and the court then stated, 'Overruled. The weight of the testimony is for the jury. Answer. (Exception)', and the witness said, 'My opinion is it is the same handwriting that is on the signature card.'

Complaint is now made for the first time that the signature card used in the comparison by Cashier Littrel was not produced in court, and that there is no showing where and when the purported expert examined the signatures together and under what circumstances the comparison was made. As to these propositions defendant is not entitled to consideration by this court.

I. Contentions made here, but not raised in the court below by exception to instruction or otherwise, will not be considered although a close examination of the record discloses the time and manner of comparison by the witness Littrel sufficient to justify this testimony. At least, we usually will not consider these claimed errors where the admission of evidence was not properly objected to nor complaint made to the trial court as to the basis of its alleged incompetency. State v. Walters, 244 Iowa 1253, 58 N.W.2d 4; State v. Mauch, 236 Iowa 217, 17 N.W.2d 536. Also see State v. Stuart, 241 Iowa 1004, 1007, 43 N.W.2d 702; 3 Am.Jur. 361, Appeal and Error, § 820; 24 C.J.S., Criminal Law, § 1669, p. 268.

We sometimes review such assignments of error as a matter of grace. State v. Ganaway, 243 Iowa 1316, 1318, 55 N.W.2d 325, 326, and cases cited therein. We feel no great compulsion to do so in this case where not one citation of authority is given us upon which defendant bases his propositions of error. This is inexcusable. Pride v. Kittrell, 218 Iowa 1247, 257 N.W. 204.

II. There is no merit in defendant's contention that the trial court erred in permitting the witness Littrel to give his opinion as to the sameness of properly identified signatures compared by him relative to this matter. Littrel was an experienced bank cashier and accustomed to comparing signatures to determine their genuineness. He qualified as an expert and his opinion as such was competent and material. In a very early case we recognized the qualification of such a person in Hvde v. Woolfolk and Bacon, 1 Clarke 159, at pages 165 and 166, 1 Iowa 159, at pages 165 and 166,...