Travis v. Brown

• Decision Date: 22 May 1862
• Citation: 43 Pa. 9
• Court: Pennsylvania Supreme Court
• Parties: Travis <I>versus</I> Brown.

Page 9

43 Pa. 9

Travis versus Brown.

Supreme Court of Pennsylvania.

May 22, 1862.

ERROR to the Common Pleas of Susquehanna county.

Bentley and Fitch, for plaintiff in error.

R. B. Little, for defendants.

The opinion of the court was delivered, May 22d 1862, by WOODWARD, J.

All evidence of handwriting, except in the single instance where the witness saw the document written, is in its nature comparison of hands. It is the belief which the witness entertains, upon comparing the writing in question with the exemplar in his mind derived from some previous knowledge. Any witness, otherwise disinterested, who has had the opportunity of acquiring such an exemplar, is competent to speak of his belief. It is one of the few instances in which the law accepts from witnesses belief in facts, instead of facts themselves. No prudent witness will undertake to swear that any signature or document was written by the person by whom it purports to have been written, unless he saw it written; but if, from having seen the party write, or from correspondence and business with him he has become familiar with his hand, he may testify to his belief as to the genuineness of the writing in question. This is the ordinary every-day rule of practice in the trial of causes.

But though it is in its nature a comparison of the writing under investigation with the exemplar in the witness's mind, it is not what is technically called comparison of hands. Still less is it that peculiar kind of proof which is known in the books as the testimony of experts. Comparison of handwritings was defined by Judge Duncan, in Commonwealth v. Smith, 6 S. & R. 571, to be "when other witnesses have proved a paper to be the handwriting of the party, and then the witness on the stand is desired to take the two papers in his hand, compare them, and say whether they are or are not the same handwriting. The witness collects all his knowledge from comparison only: he knows nothing of himself: he has not seen the party write nor held any correspondence with him." Starkie's definition is more condensed, though to the same effect: "By comparison is meant," he says, "a comparison by the juxtaposition of two writings, in order, by such comparison, to ascertain whether both were written by the same person:" Metcalf's Starkie on Ev., part 4, p. 654.

Now this is as distinct and separate a thing from that comparison which a witness called to testify to handwriting makes between the writing in question and the exemplar in his mind, as an external, visible, and tangible object is distinct from a mental impression or memory. It is the distinction between what is objective and what is subjective.

A few words now as to experts. In Bouvier's Law Dictionary, they are derived from the Latin experti, which signifies instructed by experience, and are defined as persons selected by the courts or the parties in a cause, on account of their knowledge or skill, to examine, estimate, and ascertain things, and make report of their opinions. See also note to 1 Greenl. Ev., pl. 44, p. 572. Thus when professional men give evidence on matters of skill and judgment, their evidence frequently does not and cannot, from the nature of things, extend beyond opinion and belief. An engineer may be examined as to his judgment on the effect of an embankment on a harbour; a seal engraver as to whether a particular seal has been forged; a shipbuilder as to the seaworthiness of a ship from a survey made by others; and the testimony of medical men is constantly admitted with respect to the cause of disease or of death, and as to insanity, although they found their opinions entirely on facts, circumstances, and symptoms established in evidence by others: Sharswood's Starkie on Ev., p. 152, and the cases collected in notes.

The propriety of admitting the evidence of experts in investigating questions of forgery, is now recognised by statute with us in the 53d section of the Criminal Procedure Act, and it is a necessary rule of evidence on general principles. Common sense dictates that in all investigations requiring special skill, or when the common intelligence supposed to be possessed by the jury is not fully adequate to the occasion, we should accept the assistance of persons whose studies or occupations have given them a large and special experience on the subject. Thus, such men of experience or experts are admitted to testify that work of a given description is or is not executed with ordinary skill; what is the ordinary price of a described article; whether described medical treatment or other practice was conducted with ordinary skill in a specific case; which of two colliding vessels, their respective movements being given, was in fault; whether one invention is an infringement on another, looking at the models of both; and other cases already mentioned.

This is as near to an exact definition of who are admissible as experts as it is possible for us to come. In all these cases it is to be observed that the expert is to speak from no knowledge of the particular facts which he may happen to possess, but is to pronounce the judgment of skill upon the particular facts proved by other witnesses. Of course the court must be first satisfied that the witness offered is a person of such special skill and experience, for if he be not, he can give no proper assistance to the jury; and of course, also, very much must at last be left to the discretion of the court, relative to the need of such assistance in the case; for very often the matter investigated may be so bunglingly done that the most common degree of observation may be sufficient to judge it.

Where a witness is called to testify to handwriting, from knowledge of his own, however derived, as to the hand of the party, he is not an expert, but simply a witness to a fact in the only manner in which that fact is capable of proof. Nor is he an expert who is called to compare a test writing, whose genuineness is established by others, with the writing under investigation, if he have knowledge of the handwriting of the party, because his judgment of the comparison will be influenced more or less by his knowledge, and will not be what the testimony of an expert should be, a pure conclusion of skill.

But when a witness, skilled in general chirography, but possessing no knowledge of the handwriting under investigation, is called to compare that writing with other genuine writings that have been brought into juxtaposition with it, he is strictly an expert. His conclusions then rest in no degree on particular knowledge of his own, but are the deductions of a trained and experienced judgment, from premises furnished by the testimony of other witnesses.

According to many authorities, these forms of proof are admissible in appropriate circumstances, in cases both civil and criminal; but when evidence by comparison of hands should be received, whether the witness making the comparison should be qualified by personal knowledge of the party's handwriting, when mere experts should be admitted to make the comparison, and what degree of evidence is required to establish the genuineness of test papers, are questions that have been debated in a multitude of cases, from the attainder of Algernon Sydney and its reversal, in the reign of Charles II., and the case of the Seven Bishops, in the time of James II. See 3 State Trials 802, and 4 Id. 338. The English and American authorities will be found collected in the notes to Starkie and Greenleaf, and whoever will undertake to go through them, will be struck with the confusion, obscurity, and contradiction which have arisen almost entirely from disregard of the distinctions above stated. Questions have been discussed as belonging to the law of experts, and of comparison of hands, which belonged to other heads, and judges and compilers have often written loosely even when these subjects were legitimately before them. Every one knows how essential it is to all scientific discussions that terms be first correctly defined, and then always used in the defined sense. If this rule had been reasonably observed in treating of the branch of the law we are now upon, we should not have had so many inconsistent cases in the books, and it would not have been, as it is now, exceedingly difficult for judges and lawyers to know what the mind of the law is touching proof of writings by comparison of papers. Without detaining ourselves to make a minute analysis of the cases in England and our sister states, I propose to examine our leading cases in Pennsylvania, and to state, as clearly as I can, the rule which is fairly deducible from them.

McCorkle v. Binns, 5 Binn. 348, involved a comparison of printed papers. The law of written papers came in only incidentally by way of illustration, and Chief Justice Tilghman simply stated the rule in the...