Macomber v. Scott

10 Kan. 335 | Kan. | 1872

The opinion of the court was delivered by

Valentine, J.:

This was an action on a promissory note. Defendant below, Macomber, denied the execution of the same; and the principal question at the trial was whether Macomber signed the note or not. It purported to be signed by him, and the question was whether the signature was genuine. Two letters written and signed by Macomber were introduced in evidence to show what Macomber had said about the note. Afterward a witness, W. Hadley, was examined on the part of the plaintiff. He was first shown to be an expert in the examination of signatures. Then the signature to the note and the signatures to the two letters were shown to the witness, and he was asked whether he thought they were written by the same person. The defendant objected to the question on the ground that the evidence it would elicit would be incompetent. The court overruled the objection and the defendant excepted. The witness then answered that it was his opinion that the signatures were all written by the same person. The record shows that afterward—

“ On cross-examination the witness testified: ‘ I never saw defendant write, and am not acquainted with his signature.’ The defendant then moved the court to' strike out the testimony of witness Hadley for the reason that it now appears incompetent. The court decided that it refuses to entertain the motion, and no further action of the court was had; to which refusal to entertain the motion and decision the defendant then and there excepted.”

Of course the court erred in refusing to entertain the motion. The question raised on this motion was different from the question raised on the objection to the evidence, and was raised in a different manner. On cross-examination it appeafed affirmatively that the witness had never seen the defendant write, and was not acquainted with his signature. This did not so appear on the examination in chief. This, according to some of the authorities, is a very important distinction. According to somé of the authorities such evidence is admissible where the witness is acquainted with the party’s handwriting, and is not admissible, where the party is not acquainted with the same. We have given the substance of all of witness Hadley’s testimony.. The said error of the court was however immaterial.. If the court had entertained the motion it should have overruled the same. All the signatures that the witness Hadley examined and compared were already properly in evidence for other purposes.' And, however great the conflict of authority may be upon certain questions connected with the “comparison of hands,” we think that there is no conflict of authority at the present day where the different instruments to be compared are already properly in evidence for other purposes. In such a case Prof. Greenleaf says “the comparison may be made by the jury, with or without the aid of experts.” (1 Greenleaf Ev., §578, and cases there cited.) The question however as to whether signatures can be introduced in evidence merely for the purpose of comparing them with the signature in dispute is fairly raised, in this' case in other, portions of the record. Two such signatures were introduced in evidence over the objections of the defendant. And the witness H. W. Chester, who was also an expert, was allowed, over the objection of the defendant, to express his opinion as to whether 'all the signatures were written by the same person, although he was “not sufficiently acquainted with the handwriting of the defendant to recognize it.” And the jury were also allowed, over the objections of the defendant, to examine all these, signatures for the purpose of comparing them, and determining whether the one in dispute was genuine or not. Now, as there is such a great conflict of authority upon questions connected with the “comparison of hands,” whatever we may say in-this opinion we do not wish to be understood as deciding anything not necessary to be decided in the case. We suppos^plat it may .be laid down as a general rule, that all evidence that proves or tends to prove the issue in any particular case, anything that forms a link in a chain of circumstantial evidence that proves or tends to prove such issue, is admissible, subject perhaps to some exceptions, and subject perhaps to a discretion in the court in «some cases to exclude evidence of' very remote facts or circumstances when more proximate facts or circumstances can be produced. What' we wish more particularly here to say is, that to exclude any evidence that proves or tends to prove the issue in any case is the exception, and not the rule. And we would further say that before an exception can be allowed to a general rule there must be some good reason for the exception. We suppose that it will not be claimed that the evidence in this case does not tend to prove the issue, or that it is wholly irrelevant; but it will be admitted that if it is competent it is also relevant, and tends to prove the issue. Therefore, if it is excluded it must be for some good reason. It therefore becomes necessary for us to examine the reasons given for excluding this kind of evidence. It will not be claimed that such evidence should be excluded merely because it is a comparison of hands; for all evidence of handwriting, except where the witness himself has seen the writing itself done, is, in its nature, á comparison of hands. It is the belief which the Avitness entertains upon comparing the writing in question Avith the exemplar in his mind derived from some previous knowledge, of the party’s handwriting. That evidence of this kind may be introduced in many cases, is too well established to be even questioned by any one at the^ present day. It Avill generally be conceded that comparisons may be had between writings in the following cases: where the writings to be used as specimens are admitted to be genuine, and generally Avhere no collateral issues can arise; where the different writings are already properly in evidence, or properly in the case for some other purpose; where the witness has seen the person whose signature is disputed previously write, although it has u^pi only his name;' where the witness has personal knowledge of the person’s writing from some other proper source, as from having seen writing which the person in the course of business has acknowledged to be his, or has acted on as his, etc.; where writings are of such antiquity that living witnesses cannot be had to prove them, and such writings are not so old as to prove themselves; and probably in many more cases which we might mention. The principal if not the only objections urged against this kind of evidence are as follows: 1st, The writings offered in evidence as specimens may be manufactured for the occasion; 2d, Fraud may be practiced in the selection of the writings offered in evidence ■as specimens; 3d, The other party may be surprised; he may not know what documents are to be produced, and therefore he may not be prepared to meet the inferences sought to be drawn from them; 4th, The handwriting of a person may be ■changed by age, health, habits, state of mind, position, haste, penmanship, and writing materials; 5th, The genuineness of the specimens of handwriting offered in evidence may be contested, and others successively introduced, to the infinite multiplication of collateral issues, and the subversion of justice; 6th, Juries are too illiterate, and are not competent to judge of this kind of evidence. Many of these objections can have scarcely any application in this case. First: It can hardly be supposed that a party would manufacture signatures to be used against himself. Second: When a party raises the issue himself of the genuineness of his own signature he ought to be able to •explain all his own signatures that might be introduced, and to show just how his own genuine signature should appear ■on paper. Third: He should not be surprised in such a case. He above all others should know what evidence might be introduced concerning his own signature. Fowrth: He ought to know all the changes in his own signature, and be able to explain them. Fifth: No question regarding collateral issues ■could be raised in this case, for no question was raised upon the genuineness of the signatures introduced in evidence for the purpose of comparison. Two of the signatures were rightfully introduced for other purposes, as well as for comparison, ■and upon competent evidence. The other two signatures were introduced on the testimony of the- defendant himself, he stating that they were genuine. Sixth: Our juries are selected from educated and intelligent citizens, and the rule adopted in England or elsewhere for juries that could not read writing has no application in Kansas where the juries can read writing and are able to form intelligent opinions concerning it. The question concerning a party manufacturing his own signatures, to be used in his own favor, or fraudulently selecting them in such a case, or changing his hand in any. manner, or surprising the other party in such a case by the introduction of his own signatures, is not in this case. Nor is there any question raised in this case concerning the signature of a third person not a party to the suit. Nor is there any question in this ease whether a signature, the genuineness of which is contested, or upon which a collateral issue may be raised, can be introduced in evidence for the purpose of a comparison of handwriting. Nor is there any question conceiving the power of an ignorant and illiterate jury to compare different writings. Nor is there any question raised in this case concerning the power of a party to prove by a comparison of handwriting the genuineness of a signature, the genuineness of which is not put in issue by' the pleadings. , And as none of these questions are raised in this case we do not attempt to decide them. ’We simply decide the questions in this case. Prof. Greenleaf, in speaking of the methods of proving the genuineness of a writing by comparing it with other people’s, uses the following language: “ By offering such papers to the j ury, ■with the proof of their genuineness, and then asking a witness .to testify his opinion, whether those and the disputed paper were written by the same person. This method supposes the writing to be generally that of a stranger; for if it is that of the party to the suit, and is denied by him, the witness may well derive his knowledge from the papers admitted by that party to be genuine, if such papers were not selected nor fabricated for the occasion.” (1 Greenl. Ev., § 579.) It is our opinion that all the evidence with regard to the signatures was properly admitted, and the jury properly allowed to examine all of these signatures for the purpose of comparing them, and of determining whether the one affixed to the note was genuine or not. The judgment of the court below must be affirmed.

All the Justices concurring.