State v. Thompson

• Decision Date: 20 February 1888
• Parties: STATE v. THOMPSON.
• Court: Maine Supreme Court

13 A. 892

80 Me. 194

STATE

v. THOMPSON.¹

Supreme Judicial Court of Maine.

February 20, 1888.

Exceptions from supreme judicial court, York county.

Indictment for libel. The jury returned a verdict of guilty, and the defendant alleged exceptions to the admission of the testimony discussed in the opinion.

H. H. Burbank, Co. Atty., for the State. Hamilton & Haley, for defendant.

FOSTER, J. The defendant was tried upon an indictment for libel. In the trial of the case the government offered certain writings, as being in the handwriting of the defendant, for the purpose of being used as a standard of comparison. Two witnesses, claiming to have seen the defendant write, and to be acquainted with his handwriting, were introduced, and testified that the writings thus offered were in the handwriting of the defendant. Thereupon the court admitted them for the purpose for which they were offered, against the defendant's objection. Afterwards, during the trial, expert testimony was introduced by the government, and those writings were used by them as a standard of comparison, to which the defendant also objected. To the ruling and the decision of the court admitting the writings as a standard of comparison, and their use by experts, the defendant excepted. It is in relation to the correctness of those rulings only that any question is raised by the bill of exceptions.

The principles governing this case seem to be pretty thoroughly settled by the decisions of the courts in this and other states. The question came before the court in Massachusetts in Com. v. Coe, 115 Mass. 504, where it was held that, before a writing can be used as a standard of comparison of hand writing, it must be proved that the specimen offered as a standard is the genuine handwriting of the party sought to be charged, and that the question of its admissibility as a standard is to be determined by the judge presiding at the trial; and, so far as his decision is of a question of fact merely, it is final, if there is any proper evidence to support it; and that exceptions to its admission as a standard will not be sustained unless it clearly appears that there was some erroneous application of the principle of law to the facts of the case, or that the evidence was admitted without proper proof of the qualifications requisite for its competency. The same question has very recently been before the court in Vermont, in the case of Howell v. Fuller's Estate, 59 Vt. 688, 10 Atl. Rep. 853, where the court, reviewing the decisions, there says that the question has not before been authoritatively decided in that state, and lays down this rule: that when a writing is disputed, and another is offered in proof as a standard, the court should first find as a fact that the latter is genuine, and then submit it to the jury in comparison with that in controversy. The doctrine, as enunciated in Com. v. Coe, supra, which is the same as that so recently settled in Vermont, has since been reaffirmed in Costello v. Crowell, 133 Mass. 352, and again in Costello v. Crowell, 139 Mass. 590, 2 N. E. Rep. 698. The rule in England is now the same as in Massachusetts and Vermont. For centuries, however, it was otherwise, and the English courts denied the admissibility of such testimony altogether, until 1854, when parliament, by 17 & 18 Vict. c. 125, passed what is known as "The Common-Law Procedure Act," which provides that "comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses; and such writings, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness, or otherwise, of the writing in dispute." Under this rule, when any writing is proved to be genuine, to the satisfaction of the presiding judge, it shall be admitted as a standard of comparison. By the English rule, under this statute, the jury need not consider or inquire into the genuineness of the writing introduced for the purpose of comparison, as the statute obviates the necessity of any such inquiry, and makes the finding of the judge conclusive on that point. In the light of the authorities, and the decisions in those jurisdictions where the same rule prevails as in this state in relation to proof of handwriting by comparison, we believe the rule adopted by them, upon the question by whom the genuineness of the standard is to be determined, to be the more correct and satisfactory one. Notwithstanding that, however, there are courts of high standing, and for whose decisions we have great respect, which have adopted a different rule, and which hold that the jury should ultimately pass upon the question. Such is the rule in New Hampshire, where, as it is well understood, the doctrine of proof of handwriting by comparison has always clung more tenaciously to the conservative English common-law rule than ever appeared satisfactory to the courts of Maine, Massachusetts, Connecticut, Vermont, and some of the other states. In State v. Hastings, 53 N. H. 461, SARGENT, C. J., speaking of the introduction of evidence to prove the genuineness of the handwriting offered as a standard, says: "It is to be received, and then the jury are to be instructed that they are first to find, upon all the evidence bearing upon that point, the fact whether the writing introduced for the purpose of comparison, or sought to be used for that purpose, is genuine. If they find it is not so, then they are to lay this writing, and all the evidence based upon it, entirely out of the case; but, if they find it genuine, they are to receive the writing, and all the evidence founded upon it, and may then institute comparisons themselves between the paper thus used and the one in dispute, and settle the final and main question whether the signature in dispute is or is not genuine." In Costelo v. Crowell, 139 Mass. 590, 2 N. E. Rep. 698, it was said that unless the decision of the judge in admitting the specimens as standards is founded upon error of law, or upon evidence which is, as matter of law, insufficient to justify the finding, the full court will not revise it upon exceptions. The same principle is laid down in Nunes v. Perry, 113 Mass. 276, and cases there cited.

In the case before us, the testimony in proof of the genuineness of the standard came from witnesses who, if they are to be entitled to credit, were qualified to testify in relation to the genuineness of the defendant's handwriting. It was in accordance with the well-settled doctrine of this state, as laid down in Woodman v. Dana, 52 Me. 13,...