Ware v. Burch

42 So. 562 | Ala. | 1906

ANDERSON, J.

— “The competency of persons to give their opinions as to whether a given signature is in the proper handwriting of the person by whom it purports to have been made is not confied to experts. Any witness who has seen the party write, or who knows his handwriting, may express his opinion as to the genuineness of the signature. Of course, the extent of his familiarity will enter into' the weight of his testimony.—Wharton on Ev. §§ 707, 708; 1 Bhick. Dig. § 1078. Expert's may go further; but then, to legalize such testimony, the witness must first be shown to be an exper—that is, accustomed to and skilled in the matter of hambwritings, genuine and spurious. These may institute comparisons between writings of unquestionable genuineness and the writing in dispute, and may give their Opinion whether both were written by one and the same person. They may, also, give their opinion whether a given writing is genuine, or a feigned or forged signature. There are certain other matters pertaining to handwriting about which they can give their skilled opinions, not necessary to be here considered.”—Moon’s Adm’r v. Crowder, 72 Ala. 79, and cases there cited. Only experts, persons accustomed and skilled in the matter of handwriting, may institute comparisons be-tweens writings .of unquestioned genuineness and the Avriting in dispute, and give an opinion.— Griffin v. State, 90 Ala. 596, 8 South. 670.

The only objection to the evidence of witness Almon related to the question as to “whether or not this signature Avas in Mrs. Broadhurst’s handwriting” (referring to the note in question), and his answer to same. The Avitness had testified that he knew her handAvriting, and could, therefore, ansAver the question objected to, although not shoivn to be an expert, as his evidence Avas not based upon the comparison, and, so'far .as the question and ansAver discloses, Avas based upon his independa ent kno-Avledge. The trial judge committed no error in overruling the objection to this question and the answer to the same. “Testimony that a document is or is not in the handAvriting of the decedent involves merely a matter of opinion, and not a personal transaction or communication betAveen the Avitness and the decedent, if the knoAvledge thereof was obtained otherAvise than through the transaction undergoing investigation. Therefore, according to the .great preponderance of authority, , a Avitness may testify that he knows the decedent’s handAATiting, and that tjie signature to the document is genuine, and for the same reason he may state that the signature is not genuine; but it is not competent for the witness to testify that he saw the decedent sign the paper.”—30 Am. & Eng. Ency. Law, 1033; Sankey v. Cook, 88 Iowa 125, 47 N. W. 1077; Jesse v. Davis, 34 Mo. App. 351; Simmons v. Havens, 101 N. Y. 427, 5 N. E. 73; Peoples v. Maxwell, 64 N. C. 613; Minnis v. Abraham, 105 Tenn. 662, 58 S. W. 645, 80 Am. St. Rep. 913; Martin v. McAdams, 87 Tex. 225, 27 S. W. 255. A contrary view has been taken in the cases of Merritt v. Straw, 6 Ind. App. 360, 33 N. E. 657, Holliday v. McKinne, 22 Fla, 153, and Neely v. Carter, 96 Ga. 197, 23 S. E. 313. The Georgia court goes on the idea that the proof of the signature would only be another method of proving the fact that the decedent actually signed his name to the paper. Our own court seems to he in line with the authorities that are opposed to such evidence, and it was held in the case of Kirksey v. Kirksey, 41 Ala. 626, that such evidence was a transaction as forbidden by the statute then existing, and which is section 1794 of the Code of 1896. The Kirsey Case has been overruled in respect to other points, but not as to the one involved in the case at bar, but has been approvingly cited on this point in the case of Harwood v. Harper, 54 Ala. 667. The trial court, therefore, properly sustained the objection to the question propounded to A. B. Ware as to the signature of the decedent.

It is insisted by counsel for appellant that the case of Kirksey v. Kirksey, supra, is not an authority in point, in that the witness in the case at bar was asked merely for an opinion as to the signature to' the note, whilfe in the other case there was an attempt to' examine the interested witness in reference to the signature; that is, the mechanical act of signing same. An examinalion of the record in the Kirksey Case discloses the fact that the witnesses were offered to testify as to the genuineness of the decedent’s signature to the note in question. But the record also shows that the administrator had offered evidence that the note was executed by the decedent, and witnesses had testified pro and con, giving their opinion as to the genuineness of the signature and whether or not it was in,the handwriting of the decedent. The interested witnesses were then called upon to negative the execution of the note, and we do not see how this could have been done, except by giving their opinion that the signature to the note was not in the handwriting of decedent. The statute on this subject has been re-enacted several times, subject to the construction given it in the Kirhsey Case ,and we are disinclined to overrule' said case.

The judgment-is affirmed.

Tyson, Simpson, and Denson, JJ., concur.