28 Tex. 211 | Tex. | 1866
—The pleadings of the defendant having put in issue the execution of the note, the plaintiff offered to
The most satisfactory testimony of handwriting, where the party alleged to have executed the instrument is incompetent to testify, is a witness who saw the instrument executed and is able to identify it. The next best testimony is that of witnesses who have seen the party, whose writing is in controversy, write, or have had access to or possession of his writings, so as to impress the character of the writing upon the mind, and are enabled to form an opinion by comparing the impression of the writing on their minds with that which may be submitted for their examination; and while a comparison is made of the impression on the mind with the paper submitted for examination, it is clear that this is not such a comparison as is referred to when it has been held' that it was not competent to prove handwriting by comparison. The exemplar which is upon the mind must of necessity be compared with the writing which may he submitted for examination. Ho objection has been suggested to this course; the objection to proof by comparison is, when two writings are submitted to the witness, who has no previous acquaintance with either, to say upon examination, by placing them in juxtaposition, whether the writings were executed by the same person. Hpon this question the authorities are to some extent conflicting.
In Phillips on Evidence, vol. 2, p. 609, it is said: “The proof of handwriting is founded on the knowledge of the general character. The witness is supposed to have formed
This principle, it is believed, is sustained by weight of authority, and more certainly secures juries from imposition. It is possible an attempt might he made, in selecting the writings which may be submitted by an interested party for the purpose of establishing or disproving a writing, to select specimens that may mislead. In England, it is believed that the rule is well established that it is not competent to prove handwriting by comparison. In Mudd v. Luckamore, 31 Eng. Com. Law Rep., 795, the court says: “How, in the present case, it must be conceded, that the witness had not acquired Ms knowledge of the character of the handwriting, whatever it was, in either of the ordinary modes. He had studied certain signatures selected by one party, and had acquired an impression of some general character pervading the whole; he had heard it proved that those were written by the witness Stribling, and from these materials he was to speak. It is asked, how does this differ from the case of knowledge acquired in the course of a correspoñdence, where the standard rests equally on the assumption that the letters are written by the party whose they purport to he? With respect to the assumption, there will be a fitter place to point out the distinction; but I answer here, that the two cases differ in that which is essential, in the undesignedness of the one, the fact that the letters are written in the course of business, without reference to their serving as aids to a collateral purpose in some future unknown cause, and in the selection which is made in the other by the party to
In Strother v. Lucas, 6 Peters, 766, it is said that “It is a general rule, that evidence by comparison of hands is not admissible when the witness has had no previous knowledge of the handwriting, but is called upon to testify merely from a comparison of hands. There may be cases where, from the antiquity of the writing, it is impossible for any living witness to swear that he ever saw the party write, and comparison of handwriting with documents known to be in his handwriting has been admitted, but these are extraordinary instances, arising from the necessity of the case.” (Jackson v. Phillips, 9 Cow., 112; Wilson v. Kirkland, 5 Hill, 182; Rowlett’s Administrator v. Kile’s Administrator, 1 Leigh, 222; Woodward v. Spellers, 1 Dana, 180, 181.)
Different rules have, however, been adopted by the courts of other of the States.
In Hammond’s Case, 2 Greenleaf, 31, “It was proved by the confession of the prisoner that the body and signature of certain checks were in his handwriting, and that they were lost or destroyed, so that they could not be produced on the trial; and Charles Fox, who had carefully examined those checks, and the similitude between those signatures and that of the forged check, and testified to his belief that the signature of that check was in the handwriting of the prisoner.” It was held that the evidence was properly received.
In Page v. Hammons, 14 Maine, 481, a witness was called who had never seen the defendants write, was unacquainted with their handwriting, and possessed no peculiar skill in signatures. He was requested to examine ten specimens and signatures of a number of the true signatures of the defendants, and therefrom to give his opinion
In Homer v. Wallis, 11 Mass., 310, the plaintiff produced a note proved to have been signed by the defendant by' a witness who saw him sign it. This was permitted to go to the jury, as it is believed for the purpose of comparison. The court says: “Whatever doubts there may now he in England as to proof of signatures by comparison, that a comparison by the jury of the contested signature with other writings proved to be genuine is, by the common law of this Commonwealth, proper evidence.”
In Moody v. Rowell, 17 Mass., 491, a witness was permitted to give his opinion, founded on comparison of handwriting, merely as to the want of genuineness of the defendant’s signature to the note. The witness was also permitted to testify as to the want of genuineness of such signature from the mere inspection of the note in question. The plaintiff objected to the admission of this evidence, “the witness was a teacher of writing.” It was held that the evidence was properly received.
In Borman v. Plunkett, 2 McCord, 518, the plaintiff
In Pennsylvania, after evidence has been given in support of a writing, it is said that it may be corroborated by comparing the writing in question with other writing about which there was no doubt. (Farmer’s Bank of Lancaster v. Whitehill, 10 Serg. & Rawle, 110; Gallan v. Gaylord, 3 Watts, 321.) Yet in this case it is said, that “naked, unassisted comparison of hands is inadmissible, when the question is not on the writing of a public officer so long dead as to preclude the possibility of anything better.”
In Dodge v. Phypher, 11 Serg. & Rawle, 333, it is said no authority has been shown to prove a writing from the naked comparison of hands. In Myers v. Toscan, 3 N. H., 47, it is said, “We take it to be a well-settled principle of law, that it cannot be left to a jury to determine whether
In Bowman v. Sanborn, 5 Foster, 25 N. H., 87, “if a witness have a knowledge of the handwriting of the person in question, which has been derived from seeing him write, though it be but once, he may give his opinion;” “when papers are already in evidence for other purposes, and about whose genuineness there is no dispute, the jury may make a comparison between them and the writing in question.”
In Lyon v. Symme, 9 Conn., 61, 62, the question was, whether the judge at the circuit was corréct in admitting other writings, proved to be genuine writings of the defendant, to go in evidence to the jury for them to compare with the paper in dispute, and thereby to ascertain whether it were the handwriting of the defendant.
It was held, that the testimony was properly received. The conflict in the decision on this question, it is believed, cannot be reconciled. And it appears to us that the English rule, which is also the rule in the United States Supreme Court, and many of the State courts, is the better rule.
If it be permitted to prove handwriting by comparison, controversy will likely arise on collateral issues. Efforts may be made by the parties interested to procure specimens of writing supposed to be favorable to the party introducing them.
The writing offered as a specimen, if not admitted, must be proved to be the signature of the parly whose signature is in controversy. This may induce the necessity of calling witnesses to identify the specimens as the handwriting of the party whose they purport to be. An issue is ere
It is believed that the English rule enables the jury, with more certainty, to decide the matters really in issue between the litigants. In this cause, the jury were to decide by comparison of hands, without having any previous acquaintance with the handwriting, so far as appears from the record. It does not appear that the jury, or any of their number, were experts. The writings submitted to them were not papers necessarily before them. The court erred in overruling the objections to the testimony. Errors have not been assigned with such certainty as to require a more extended discussion.
The judgment is reversed, and the cause
Remanded.