72 Ind. App. 1 | Ind. Ct. App. | 1919
—Action by appellee, as administrator of the estate of William Bretthauer, absentee, against appellant to recover on a deposit alleged to have been made by said absentee with appellant.
Appellant in defense contended that said absentee had borrowed $1,400 of it and had executed a note to appellant for said amount, and asked that the same be set off against any sum found due appellee. The appellee contended that the note was a forgery.
The only question for determination on this appeal relates to the action of the trial court in refusing to permit appellant to introduce in evidence a number of checks, designated as exhibits 6, 7, 8, 9, 10, 11, 12, 14,15,16,17 and 18. The appellee contends that there was no error in the refusal to admit these exhibits in evidence for the reason that they were offered in evi
Exhibits 6,7, 8, 9,10,11 and 12 were voucher checks drawn by appellant and claimed to have been indorsed by the absentee. The other exhibits were checks
Exhibits 10, 11 and 12. were voucher checks, which had been issued by appellant to the absentee several years prior to the execution of the note in controversy. Mr. Katterhenry, who was the secretary of the appellant, testified that he saw the absentee, William Bretthauer, sign his name on the back of each of these exhibits.
for the sole purpose of comparison. It was not competent to establish the genuineness of such papers by other evidence for the purpose of using them as a standard of comparison. Williams v. State (1911), 175 Ind. 93, 93 N. E. 448; McDonald v. McDonald (1895), 142 Ind. 55, 41 N. E. 336; White Sewing Machine Co. v. Gordon (1890), 124 Ind. 495, 24 N. E. 1053, 19 Am. St. 109. This rule made the proof of forgery difficult, tied the hands of those seeking to show the facts, encouraged crime, and assisted the criminal. Osborn, in his introduction to “Questioned Documents,” p. xxii, said: “This procedure is a curious inheritance projected into the present day practice and its continuance is one of the curiosities and misfortunes of legal procedure. In jurisdictions where no standards are admitted writing in many cases must be proved by those alone who are said ‘to know a handwriting,’ and the spectacle is too often presented of one line of tottering old men and women, who saw some one write many years before, all testifying that they think a certain writing is genuine and another similar line testifying that from their
In discussing the standards of comparison, Mr. Osborn says: “Under this peculiar and unfortunate condition it is usual that only very inadequate if not wholly improper standards are available and under such conditions it is not surprising that so-called proof of handwriting is often a mere farce. * * * Under this old practice where the standard writing came into the case ‘by accident’ it is not to be wondered at that such testimony often deserved the criticism it received and the whole history of the subject has been clouded by this unfortunate, procedure.” Osborn, Questioned Documents 16, 18.
The common-law'rule was changed in England by statute in 1854. Massachusetts and Connecticut from the first adopted the common-sense rule of permitting comparison of handwriting with properly approved standards. Virginia changed the rule by action of the Supreme Court in 1884. Hanriot v. Sherwood (1884), 82 Va. 1. Congress changed the rule in the United States courts in 1913. The legislatures of all the other states, with the possible exceptions of Arkansas, North Carolina, Texas and Utah, have by statute abrogated the common-law rule. Indiana was one of the last to adopt the practical and common-sense side of this question. This she did in March, 1913, when the legislature passed an act which provided: “That in any proceeding before a court or judicial officer of the State of Indiana where the genuineness of the handwriting 'of any person may be involved, any admitted or proved handwriting of such person
matter likely to prejudice the jury should be introduced in evidence on the pretext of comparison. The court should be exceedingly careful not to allow any writing to go to the jury which might possibly improperly influence them in the case on trial, and where there is any matter in the writing that might have that effect, that paper should be excluded.
There is some difference of opinion as to what amounts to satisfactory proof. Some courts hold that the genuineness of a standard should be proved by the testimony of a witness or witnesses who saw it written, by the admission of the party, or by other evidence of equal certainty. Hyde v. Woolfolk (1885), 1 Iowa 159; Baker v. Haines (1841), 6 Whart. (Pa.) 284, 36 Am. Dec. 224; Cohen v. Teller (1880), 93 Pa. 123. It has been held in Ohio that, where the standard is not already in the case or admitted to be genuine, its genuineness must be proved by persons who testify directly and positively to its having been written by the party. Pavey v. Pavey (1876), 30 Ohio St. 600.
Proof by preponderance of the evidence has been held sufficient in Vermont. Rowell v. Fuller (1887), 59 Vt. 688,10 Atl. 853. It was held in Clark v. Douglass (1896), 5 App. Div. 547, 40 N. Y. Supp. 769, that the genuineness should be established by.proof so clear that, were it an issue in the case, a verdict would be directed for the paper’s genuineness. See, also, Sankey v. Cook (1891), 82 Iowa 125, 47 N. W. 1077. But in McKay v. Lasher (1890), 121 N. Y. 477, 24 N. E. 712, it was held that the mode of proof of genuineness is to be regulated by the general rules of evidence applicable to the proof of any handwriting. Most of the statutes enacted upon this subject limited
The Supreme Court of New Hampshire in State v. Hastings (1873), 53 N. H. 452, in discussing the English statute, said: “Under that statute, the jury probably need not consider the question of the genuineness of the paper * * *, as the statute seems to make the finding of the judge on that point conclusive; but without such a statute it would seem to be necessary that the evidence of the genuineness of such paper should be introduced to the jury, and then that the jury should find that fact for themselves upon all the evidence. With this modification, we see no reason why this English rule may not be adopted in this state as a plain and just rule, to be followed in all such cases.” The same court in University, etc. v. Spalding (1901), 71 N. H. 163, 51 Atl. 731, 62 L. R. A. 817, citing State v. Hastings, supra, said: “Of the doctrine involved in the suggested modification, it may be said: (1) It is dictum. (2) It is opposed to the whole body of English and American authority. (3) It is contrary- to general opinion and policy, as indicated by the whole trend of modern legislation. (4) It is unsupported by any, and is contrary to many, New Hampshire cases. * * *. (5) It was based upon State v. Ward, 39 Vt. 225, which has since been repudiated by the same court. Rowell v. Fuller, 59 Vt. 688. (6) It has been reviewed in Maine and rejected. State v. Thompson, 80 Me. 194. (7) Text-writers have criticised it. Rog. Ex. Test., s. 138; Laws. Ex. & Op. Ev. 395, 397. Finally, it is as unsound as it is anomalous. If adhered to as a rule, it would make comparison a source of confusion rather than of instruction. Its vices may not be emphasized
The famous case of Doe v. Suckermore (1836), 5 Ad. & Ell. 703, was not to secure the admission of disputed signatures to be passed upon by the jury, but to the end that specimens already established to be genuine might be used as a basis of comparison. This decision was doubtless the causative factor in the passage of the English statute and, in the absence of such statute, the common law of England would doubtless have adjusted, itself to the changed conditions, and would be in accord with the modern practical and common-sense rule. In the instant case, no objection was made to the introduction of the alleged genuine signature's on exhibits 10,11 and 12 upon the
The statute of New York, passed in 1880, provided that: “Comparison of a disputed writing, with any writing proved to the satisfaction of the court to be genuine shall be permitted to be made by witness in all trials and proceedings, and such writings and evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute. ’ ’ The court of appeals in People v. Molineux (1901), 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193, said: “It is obvious that the purpose of this enactment was to enlarge and not in any wise to narrow the rule established at common law. The latter was generally felt to be too inelastic, as it frequently excluded from the consideration of the court testimony - which common experience proved to be helpful. * * *. We think it too clear-for extended argument that the ‘disputed writing’ referred to by the statutes is any writing which one party upon a trial seeks to prove as the genuine handwriting of any person, and which is not admitted to be such, provided that the writing is not inadmissible under other rules of evidence. The statutes were clearly intended to remove the restriction
“Before a writing can be used as a standard of comparison of handwriting, it must be proved that the specimen offered as a standard is the genuine handwriting of the parties sought to be charged. The question of its admissibility as a standard is to be determined by the judge presiding at the trial, and so far as his decision is a question of fact merely, it is final, that is, not reviewable by the appellate court,
The Supreme Court of Massachusetts, in discussing the rule, said: “The defendant contends that the handwriting of a standard must he proved by direct evidence of the signature, ‘ or by some equivalent evidence,’ and that the only way in which this can be done is either by the testimony of the witness . who saw the defendant write it or by the defendant’s admission that he wrote it. * * * gut whatever may be the rule elsewhere, it has been said by this court that here the standard shall be proved by ‘direct proof of the signature or other equivalent evidence,’ and we understand that to be the true statement of our rule. * * * An examination of the cases in which this language is used will show, however, that the distinction declared is between evidence based solely upon an inspection of the paper, as for instance that given by an expert or one acquainted with the handwriting of the party charged, and who testifies as to the genuineness solely by comparison with another standard or with an exemplar in his own mind, on the one hand, and on the other hand evidence of a different hind having a tendency independent of any opinion as to handwriting to show that the paper was written by the party charged. In other words, you cannot prove a standard by the opinion of witnesses as to the handwriting of the person charged, whether the opinion be based upon comparison with other
The Supreme Court of Illinois in Stitzel v. Miller (1911), 250 Ill. 72, 95 N. E. 53, 34 L. R. A. (N. S.) 1004, Ann. Cas. 1912B 412, before the common-law' rule was changed by statute, said: .“The tendency of the legislation, as well as of judicial decisions, is to relax this rule and to enlarge upon its exceptions, or, rather, to permit a more liberal use of comparison with any writing established to be the writing of the party whose handwriting is in issue, whether the writing is otherwise relevant or not. ’ ’
In First Nat. Bank, etc. v. Barker (1914), 75 W. Va. 244, 83 S. E. 898, in the syllabus written by the court, it is said: “On an issue as to handwriting, nothing but genuine signatures of the person whose signature is in issue, made in the ordinary course of conduct, are admissible in evidence for purposes of comparison, * * Courts and jurors are bound to ac
In Williams v. Williams (1912), 109 Me. 537, 85 Atl. 43, the court said: “Whatever the rule may be in other jurisdictions the general rule adopted in this state is that when the genuineness of handwriting is in question it may be proved by comparison with other handwriting of the party sought to be charged, admitted or proved to be genuine; that such writing is admissible as a standard for the purpose of comparison whether relevant to the issue or not; that before it can be admitted as a standard it must be proved or admitted to be genuine; that the question of its admissibility as a standard is to be determined by the presiding justice, and exceptions to its admission will not be sustained unless it clearly appears that there was some error in law dr that the evidence was admitted without proper proof of the qualifications requisite for its competency.” Citing State v. Thompson (1888), 80 Me. 194, 13 Atl. 892, 6 Am. St. 172.
Massachusetts adopted the same rule and held that exceptions will not lie to the findings of the presiding justice unless his decision is founded upon error in law, or upon evidence which is, as a matter of law, insufficient to justify the findings. Nunes v. Perry
In Cowboy State Bank, etc. v. Roy (1915), (Tex. Civ. App.) 174 S. W. 647, it is said: “The general rule is that the genuineness of disputed handwriting may not he determined by the court or the jury by comparing it with other purported handwriting of the party, unless such other handwriting, used as a standard for that purpose, is an admitted signature by the contestant, or has been ‘established by clean and undoubted proof; that is, either by direct evidence of the signature (to such other writing), or by some equivalent evidence.’ ” Ashwell v. Miller (1913), 54 Ind. App. 381, 103 N. E. 37, was decided after the passage of §528a, supra, but related to a cause tried prior to the enactment of such statute. It was there said that: “In inquiries involving the authenticity of handwriting, a standard of comparison is not of itself primary evidence of the genuineness or spuriousness of such handwriting, but rather it is a measure, which having been ascertained to be correct, is used to mete out primary.evidence on the issue involved. Where the cause is tried by a jury, the court, rather than the jury, determines whether a writing proposed as a standard, is authenticated or may be used as such, and the .right to submit the standard as such to the jury does not exist. The evidence based on the standard goes to the jury through the testimony of experts. It therefore follows that in the final determination of the cause, the question of the genuineness of the standard is not submitted to the jury. * * *, other writings admitted to be genuine, and already in evidence for some other purpose, may be submitted to the jury for comparison
In Timmons v. Gochenour, Admr. (1919), 69 Ind. App. 295, 117 N. E. 279, the genuineness of the sig"nature of one Scott was in controversy. On the,cross-examination of a witness he was handed a paper purporting to bear the genuine signature of Mr. Scott, and asked whether such signature and the signature of said Scott on one of the notes in controversy were both written by the same person. Objection was made to the question, “ ‘for the reason that the exhibit shown the witness has not been introduced in evidence in this case and not proper to be used as a comparison until it becomes competent evidence in the case. ’ ’ ’ After quoting §528a Burns 1914, supra, the court said: “The objection is based wholly on the proposition that the paper in question had not been introduced in evidence in the case. The statute makes provision for any admitted or proved handwriting. The handwriting might be proved or the signature admitted to be genuine, without placing the instrument in evidence.”
Judgment is therefore reversed, .with instructions to grant a new trial, and for further proceedings not inconsistent with this opinion.