110 Neb. 822 | Neb. | 1923
Lead Opinion
James B. O’Connor is charged in the information with the offense of uttering a false and forged will. On this charge he was convicted in the district court for Adams
The theory of the state is that this alleged will of John O’Connor was forged, after the death of John O’Connor, by James B. O’Connor or some one implicated with him, and dated back to a time prior to the death, ,and that the motive was to obtain the fortune left by the deceased. This theory of the state permeates the whole record and constitutes the warp and woof relied upon by the state to hold together and sustain this prosecution and conviction. In the language of the state’s brief this theory is expressed as follows:
“The testimony shows that the accused was the first claimant to file a claim of heirship in the county court to John O’Connor. He had taken an active part in the original attempt to probate the will, now involved, in the county court. He was present at all of the many trials involving the estate of the deceased, both in connection with questions of heirship and with those involving wills. He had observed the weak and the strong points in all the proceedings. He was familiar with the local surroundings. He knew what would appeal to the sentiments and feelings, the likes and prejudices of the people of the community respecting any will that might be brought forward, purporting to be the will and testament of John O’Connor. No one was better qualified than he to draft a will that would reflect his eccentric characteristics. Does not the instrument involved attempt to reflect these characteristics and to fit into the local surroundings? No one was more able to make it do so than the accused.”
The state has consistently adhered to the above theory at all times and must now stand or fall by this theory, as it has not attempted to establish the alleged forgery of this will at any other time or in any other way.
The will in question was acknowledged before a notary public. Our statute does not require a will to be acknowledged, neither does it forbid it. Hence, a testator
We now come to a discussion of the evidence in this case. Watkins, the notary, died August 5, 1909. In the administration of his estate Judge Amick acted as attorney. Within 30 days after the death of Watkins his library and desk and notarial seal were moved to the office of Judge Amick. The seal remained in the possession of Judge Amick until this litigation came up, when search was made for it. Judge Amick found the seal in the right-hand lower drawer of the desk he obtained from Watkins’ office about 30 days after Watkins’ death. The seal was closed and rusted together and bore evidence of having been in this condition for a long time. The judge was unable to open the seal and took it to a mechanic. The mechanic took out the lever pin and broke the seal apart. An impression of the seal was taken upon a piece of paper and is now in the record. It proved to be the seal of Watkins and the same as the impression upon the will. This identical seal was not used on the will in question recently, as
As to the signature of the notary, Judge Amick says he knew Watkins for 25 years before his death; says he had assisted Watkins many times in the trial of cases; says he knew the way Watkins dressed, how he walked and how he looked, and then says he knew his handwriting as well as he knew his face, and gait, and says the signature to the certificate to the will is the genuine signature of Watkins. And to make his judgment doubly sure, he says he went to the courthouse and found numerous signatures of Watkins, known to be- genuine, and made a critical examination of the questioned signature in comparison with the genuine, and again pronounced the signature, to the certificate to the will, the genuine signature of Watkins. Watkins’ wife says the signature to the certificate to the will is the genuine signature of her deceased husband. The two witnesses to the will say they saw Watkins sign his name to the certificate. Also Yeager and Brown pronounced the signature genuine. In addition to all this, the record contains numerous' signatures of Watkins, admitted 'by all to be genuine, so that the court may also make a comparison with the signature of Watkins to the certificate to the will, which is also in the record.
Against this testimony we have the opinion of an expert witness. He thought the signature of Watkins to the acknowledgement not only spurious, but also ^thought it the handwriting of the accused. Another expert, fully as competent, came to the opposite conclusion. The record shows that the first expert testified in another case that the name John O’Connor, signed in Albany, New York, 50 years ago, was the handwriting of John O’Connor who signed certain papers admitted to be the handwriting of John O’Connor of Hastings, Nebraska. After reading his cross-examination, and con
\Vhile it was not necessary for the state to show that the accused actually wrote the signature to the will in question, because he was charged with uttering a forged instrument, still it was the theory of the state that the accused did in fact write the signature to the will a« well as the signature of the notary. The state attempted to prove this fact to show guilty knowledge on the part of the accused in uttering the instrument. To do this the state called expert witnesses, not only to show that the deceased did not sign the will, but the further .fact that the accused did.
The opinion of an expert that a certain signature to an instrument, claimed as spurious, was not written by •the same person whose genuine signature he has examined, has probative value. But Mr. Osborn says: “When a signature is shown to be fraudulent, the question naturally arises as to who committed the forgery. This question is usually asked in every such case, ¡but cannot often be answered with much certainty, judging from the writing alone. It is much easier to show that a fraudulent signature is not genuine than it is to show that such a writing is actually the work of a particular writer.” Osborn, Questioned Documents, p. 13.
The state offered in evidence a letter of the accused to Mrs. Watkins. This letter was dated November 4, 1917. The letter shows a knowledge of the disputed will. The will was not opened and read in the county court until November 19, 1917. This was a damaging circumstance, if true, for it proved guilty knowledge. But, was it true? This letter was dictated to a stenographer. The stenographer was called as a witness. She testified the letter was written at the time of its dictation, and she produced the book containing her original notes. The letters iti her note-book before and after
The witnesses to the will also wrote some letters to District Judge Corcoran. We have examined them and find nothing in the letters to indicate collusion or any corrupt motive. We suppose that, while time lasts, some people will continue to talk and write foolishly. A district judge gets many letters that ought not to have been written. Judge Corcoran did not consider the letters of sufficient importance to answer any of them. No witness was' produced to speak against the reputation for truth and veracity of either of these witnesses. Neither witness is an educated man and neither seems capable of carrying out any scheme to defraud.
Now, could this will have been falsely made and these witnesses and Mr. Watkins deceived? It is possible, but highly improbable. The accused could have gotten some one to simulate John O’Connor on October 10, 1908, the date the will bears. But Avhat motive could prompt him? John O’Connor was living at that time. The will of a living man is of no value, and is not even the subjeet of forgery. Huckaby v. State, 45 Tex. Cr. Rep. 577. A later will by O’Connor would revoke such a will without the necessity of proving it spurious. But we need waste no time on conjecture. The state has a different theory, and if the above theory had been adopted the burden would have been on the state to prove it beyond a reasonable doubt, and it finds no support in the evidence.
Was it possible to have produced this will recently and dated it back in some way other than contended for? To do it one would have to take a genuine impression of
We will not examine into the state’s evidence that John O’Connor Avas at home, in Hastings, at the time this will was drawn. Suppose this fact were established, it gets us nowhere. The burden would still be upon the state to prove beyond a reasonable doubt that the impression of the notarial seal on the will and the signature of the notary were spurious. The state has not succeeded in doing this. On the other hand, the defense has shoAvn the seal to be genuine almost to a mathematical certainty, and the genuineness of the signature of the notary seems to be established.-
It Avill serve no useful purpose to examine the assignment of errors of law and we shall not do so.
We wish, in passing, to call attention to the case In re Estate of O’Connor, 105 Neb. 88. In this case the will herein involved was offered, for probate. The evidence in the probate proceedings was the same in many respects as now before the court. In the probate proceedings the state was not a party, and only one question was involved, to wit: Was the instrument offered for probate the last Avill and testament of John O’Connor deceased? The district court said it was, a majority of the supreme court said it was not. Being a civil case, this question turned on the preponderance of the evidence alone, and did not require proof beyond a reasonable doubt, as it required in such a prosecution as this. Neither the note-book nor the testimony of the stenographer were in evidence at the trial of the civil case, and Avhat then seemed to be a fact — that the letter, dated November 4, was Avritten before the contents of
Under these well-settled principles, we are convinced that the evidence as produced in this, a criminal case, is not sufficient to uphold a conviction.
The judgment of the lower court is
Reversed.
Dissenting Opinion
dissenting.
I have no criticism to make of the principle of law announced in the syllabus of this case, but, after a careful examination of the record, I am unable to concur in the view of the majority of the court that the evidence is insufficient to establish defendant’s guilt beyond a reasonable doubt.
In my opinion, the evidence establishes the fact that
