Nelms v. State

91 Ala. 97 | Ala. | 1890

COLEMAN, J.

But one question is presented by the bill of exceptions, and that is as to the competency. of the testimony of the witness C. W. .Guice, the husband of Susie Guice, to show that the written instrument was in the handwriting of the defendant.

Persons who are acquainted with, or have some knowledge of another’s handwriting, whether acquired by having seen the party write, or other legal way, are competent to testify and give an opinion as to the genuineness of the signature. Experts - may go further, and institute a comparison between writings admitted to be genuine and those disputed, and give an opinion. A witness need not be familiar with another’s handwriting, to render him competent; on the other hand, not every person who has seen another write is competent to testify, or give an opinion upon the genuineness of the signature. In the course of a busy life, one may see many persons write, in many instances merely casually, the recollection of which is entirely effaced from the memory, as much so as if he had never seen the writing. In such cases, the witness is not competent to give an opinion, merely because he may remember, or it may be shown, that, he has seen the person write. Not being an expert, in order to make a witness competent to give an opinion as to the genuineness of a writing, he must be able to say that he has some knowledge or acquaintance with the handwriting of the person, or believes he has such knowledge or acquaintanceship, acquired by seeing him write many times, or once, or in some other legal way. The extent of his knowledge or familiarity with the handwriting in question enters into the weight of his testimony, but does not affect its competency.

In the case of State v. Givens, 5 Ala. 754, it was declared, that “ a witness required to testify upon the subject, must possess a previous knowledge, acquired by having seen the party write, or in some other legal manner.”

In the case of Hopper v. Ashley, 15 Ala. 465, the witness answered, “that he had seen the plaintiff write onee, but he did not know his handwriting A The court informed the witness “ that he was not required to swear positively as to the writing, but if, from having seen the plaintiff' write once or oftener, he believed he was acquainted with his handwriting, or would recognize it, then lie was competent, and bound to give his opinion.” Here the witness was held incompetent.

The case oi Moon v. Crowder, 72 Ala. 88, relied on by the prosecution, does not militate against these authorities. The declaration “that a witness who has seen the party write may express his opinion,” referred to the facts of the case which appeared in the record, though not reported in the opinion, and which tended to show a pievious knowledge of the handwriting, acquired by having seen the party write. The more recent case of Griffin v. State, 8 So. Rep. 670, 90 Ala. 596, fully declared the same rule, as to the competency of a witness to give an opinion upon handwriting.

The witness Guice testified, “that he did not know the defendant’s handwriting ; that he had seen him write but once, and that he had seen but that, one writing that he knew to be defendant’s ; that witness was not familiar with, and did not know the defendant’s handwriting, and could not say whether the said note or order was in the handwriting of the defendant.” Without more, this is not sufficient to render the witness competent to give an opinion. Possibly, if the witness had been instructed 'as to the extent of knowledge or acquaintanceship with the handwriting necessary and applying in such cases, as'explained in the case of Hopper v. Ashley, 15 Ala. supra, the knowledge of the witness was sufficient to bring him within the rule; but, as it appears in the record, the objection should have been sustained.

Reversed and remanded.