143 Ala. 62 | Ala. | 1904
The matter of former jeopardy is not properly presented for consideration, bnt, as the case will have to be tried again, we call attention to .the fact that the minute entry of the court, which is set out in the plea of former peopardy (which was stricken out), does not show that the defendant refused to allow the indictment “To be amended.” If the record here is a correct transcript of the original record, the order of the court- was not in accordance with the statute.
There was no error in sustaining the objections 1, 2 and 3 to the questions by defendant, as the matters inquired of were entirely irrelevant to the issues involved in this case.
There was no merit in the objection to the testimony of W. IT. Merritt and John W. Hunter, as to whether the signature to the paper was in the handwriting of the absent partner, James H. Hunter. The testimony of the writer himself is not of higher grade than that of one who knows his- signature, and in this case he was proven to be out of the State. — McCaskle v. Amarine, 12 Ala. 17; 15 Am. & Eng. Ency. Law, (2d ed.) p. 254; Karr v. State, 106 Ala. 1, 7.
The court erred in admitting, over the objection of defendant, the inventory which was supposed to have been written by the defendant, for the purpose of comparison, and in permitting the witness to compare said paper with the forged instrument for the purpose of testifying as to the similarity of the writing on that paper with the writing and signature of the forged instrument. The rule of law is that it is not allowable for either witnesses or juries to compare the handwriting of papers, not in evidence for other purposes, with the disputed writing or signature. — Kirksey v. Kirksey, 41 Ala. 626, 636, 640; Williams v. State, 61 Ala. 33, 39.
The judgment of the court is reversed and the cause remanded.