State v. Tice

• Decision Date: 05 April 1897
• Citation: 30 Or. 457,48 P. 367
• Parties: STATE v. TICE.
• Court: Oregon Supreme Court

48 P. 367

30 Or. 457

STATE v. TICE.

Supreme Court of Oregon

April 5, 1897

Appeal from circuit court, Multnomah county; T.A. Stephens, Judge.

Jonathan Tice was convicted of forgery, and appeals. Reversed.

John H. Woodward, for appellant.

C.M Idleman, Atty. Gen., and D.J. Malarkey, for the State.

WOLVERTON J.

The defendant was indicted with others and convicted of the crime of forgery. The subject of the forgery is an instrument purporting to be the last will and testament of one Nancy M Love, and the crime consists, as the indictment charges, in falsely making and forging the name "Nancy M. Love, her X mark," thereto. At the trial a genuine will of Nancy M. Love, which she had subscribed by her mark, was, after proving her death, offered and admitted in evidence, over the objection of the defendant, for the sole purpose of affording a comparison of the alleged forged mark with the signature mark subscribed thereto. George G. Smith, a co-defendant, who had previously pleaded guilty and received his sentence, testified, among other things, that Tice wrote Nancy M. Love's signature to the alleged will, and then his own. M.C. George, called as a witness for the state testified that he knew Tice and was familiar with his handwriting, and also with the mark of Nancy M. Love, and that the signature to the will and the name "Jonathan Tice" were in the handwriting of the defendant. The witness was, on redirect examination, permitted, over the objections of defendant, to make a comparison in the presence of the jury of the mark to the alleged forged will with the one attached to the genuine will, and from such comparison he testified that in his opinion the mark subscribed to the pretended will was not the mark of Nancy M. Love. In this there was error. Under the English exposition of the common-law rule, the resort to a comparison of hands, by placing them in juxtaposition, for the purpose of determining the genuineness of a writing, was not permitted, except in two instances: One was when a writing proved to be that of the party whose signature is in dispute is already in evidence, having been put in for other purposes, and the other pertained to ancient documents. Whart.Cr.Ev. §§ 555, 556; Lawson, Exp.Ev. 327; Mudd v. Suckermore (1837) Willm., W. & D. 405; s. c. 2 Nev. & P. 16; Moore v. U.S., 91 U.S. 270. The rule has since been changed in that country by statutory enactment which permits comparison with "any writing proved to the satisfaction of the judge to be genuine." The rules upon the subject adopted in this country are not uniform. Some of the states adhere to the exposition of the common-law doctrine as above stated; some (notably Massachusetts) hold, without statutory interposition, that a comparison may be made by the jury with other writings proved to be genuine,--Homer v. Wallis, 6 Am.Dec. 169 (see, also, the author's note at pages 171 and 172); Com. v. Coe, 115 Mass. 481; and some of them have adopted statutes similar to the English enactment, but with different regulations touching the standard of comparison and the persons by whom it shall be made. According to the statutes of the latter states, the standard must be acknowledged or proved to the satisfaction of the court, and the comparison must be made by the jury alone, or by experts and the jury. These statutes relieve the question from the inextricable conflict which the courts have brought on by adverse holdings under the common law. Baker v. Mygatt, 14 Iowa, 131; Peck v. Callaghan, 95 N.Y. 73; Insurance Co. v. Gibson, 52 Ga. 640. Our enactment touching the subject differs from any that we have been able to find. It is as follows: "Evidence respecting the handwriting may also be given by a comparison, made by a witness skilled in such matters, or the jury, with writings admitted or treated as genuine by the party against whom the evidence is offered." Hill's Ann.Laws Or. § 765. This statute, it is held, has put the dispute elsewhere subsisting at rest, and that a standard of comparison not admitted in evidence for another purpose, or otherwise relevant or competent, may, in this state, be submitted, by which to determine the genuineness of the writing in dispute. Munkers v. Insurance Co. (Or.) 46 P. 850. See, also, Holmes v. Goldsmith, 147 U.S. 150, 13 Sup.Ct. 288. The tests of the standard prescribed by the section quoted must be held to exclude any other test that might be permissible elsewhere. Applying these tests, it is clear that the genuine will of Nancy M. Love ought not to have been admitted for the sole purpose of instituting a comparison between the signature to the alleged forged will and her mark constituting her signature to the true one. It does not appear from the record that the defendant had admitted, nor is it shown that he had treated, the true will as a genuine writing. So that it was not competent for the witness, admitting that he was a person skilled in such matters, to institute the comparison. By the preceding section (Hill's Ann.Laws Or. § 764) it is provided that "the handwriting of a person may be shown, by any one who believes it to be his, and who has seen him write, or has seen writing purporting to have been his, upon which he has acted or been charged, and who has thus acquired a knowledge of his handwriting." It was therefore competent for the witness to testify from his own knowledge of the handwriting of the accused, when acquired in any of the modes pointed out, and under the authorities such testimony may extend to the mark of Nancy M. Love. George v. Surrey (1830) Moody & M. 516; Sayer v. Glossop, 12 Jur. 465; Strong's Ex'rs v. Brewer, 17 Ala. 706; Fogg v. Dennis, 3 Humph. 47; Lansing v. Russell, 3 Barb.Ch.

325; Little v. Rogers (Ga.) 24 S.E. 856; Lawson, Exp.Ev 296. But they are not uniform, and some judges have strongly characterized such attempts to establish the identity of a mark as impossible and unsound. In Engles v. Bruington, 4 Yeates, 345, it is said that "to attempt to prove a mark to a will would be idle and ludicrous." In a later case from the same state ( Shinkle v. Crock, 17 Pa.St. 159),...