47 Vt. 222 | Vt. | 1874
The opinion of the court was delivered by
In respect to Stewart, Huntington, and Henry, whose opinion as experts was offered by defendant, each gave testimony touching the matter of his peculiar skill in judging of the identity of the handwriting which was the subject of comparison. The court found that testimony to be true; and still refused the proffered testimony of their opinion, on the ground that the testimony given did not show that either of said witnesses was such an expert as to make his opinion, based upon examination and comparison alone, admissible. This is tantamount to saying that in the judgment of the court, the facts testified by said witnesses, did not as matter of law, constitute them experts, nor as matter of evidence, show that they were experts, according to the true idea of the law on that subject. If those facts are to be regarded as matter of evidence from which the court is to find whether experts or not, of course such finding is not revisable in this court. If those facts are to be regarded as ultimate, and the perfected ground for a definitive judgment of law, then such judgment would be revisable in this court. This propo
“ The opinions of witnesses are confined to men of science, art, or skill in some particular branch of business.” Crowell v. Kirk, 3 Dev. 356-7; Corlis v. Little, 1 Green, 232. “ In respect to matters which call for opinions founded on peculiar knowledge, it is proper for the court first to ascertain whether the witness be an expert, that is to say, skilled in the matter to which his opinion is desired. They may be satisfied on this question by examining the witness himself and others, as was done in Mendum’s case, 6 Rand. 709.” See Davis v. Mason, 4 Pick. 156. “This species of evidence, if admissible at all, must obviously stand upon the general principle allowing persons skilled in a particular science or art, to give their opinions upon questions relating to it, and in respect to which they are supposed to possess peculiar knowledge.” Neither of the witnesses professed or testified that he regarded himself as having any peculiar skill, or that in his own supposition he had any such skill as would enable him to rely on his own opinion as to the identity in question. The experience testified to did not of itself, as matter of law, either constitute or conclusively imply such skill. All that experience might have been had by each, and still that peculiar skill have been wanting. It does not help, to say that it might as well have resulted in such skill, or that it was likely to have resultéd in such skill, or that it was most likely so to have resulted, unless it
It is to be repeated, that so long as the evidence or facts do not constitute or conclusively show the skill, and such skill is matter of fact to be inferred from such evidence or facts, the finding of the court in that respect is not revisable as being error in law. So are all the cases. It may not be improper to remark, that while we are not disposed to narrow the scope of the law as it has been developed and applied cn this subject, we see no occasion or reason for enlarging that scope. It would be trite to repeat the very uniform expression of judges and the books as to the small value of this kind of evidence, yet it is warrantable to say that such expression is corroborated by our own observation and experience in judicial administration.
What was offered to be shown by McEwen, was offered in contradiction of plaintiff’s statements in his testimony given before the commissioners, that testimony having been introduced on the trial in this cause by the defendant. The plaintiff was not a witness on said trial, so it could not be pertinent as impeaching his credit as a witness. As matter of contradiction, then, it could only operate to show that he had falsified in testifying before the commissioners thus : “ It was money I had collected on my demands in St. Lawrence county. I commenced saving what I collected about the first of October, 1868.” It is not shown by the exceptions nor claimed in the argument, that any point was made by defendant against the plaintiff’s claim that he loaned the money, on the score that he had not money in such amount as to render such a transaction likely. If such a ground of defence had been taken, any evidence tending to show want of money for such a loan, would have been proper, whether it was what plaintiff had
On the subject of the second request of the defendant, the court instructed the jury according to the law as administered in Mattocks v. Lyman, 18 Vt. 98, as stated in 1 Greenl. Ev. § 201, and as shown and established by the current of leading cases.
i s to the first request. That request, and the response to it, are to be considered in view of the state of the case and the posture of the subject as the trial went on. It is expressly stated that no claim was made by plaintiff that the indorsement itself was any evidence that the note was executed by Williams. The note, with the indorsement on it, was properly in evidence, said indorsement being in plaintiff’s handwriting. This was all that plaintiff put in as to such indorsement. If defendant had let the matter rest there, the whole subject would Save been embraced in his request, and would have been disposed of by a literal compliance with it. But instead of that, the defendant put in what constituted the “ other evidence in the case tending to show that the money was in fact paid, and indorsed by thfe plaintiff at the request of the deceased.” The defendant also introduced evidence to show that such evidence was not true. The defendant alone thus presented the subject of that indorsement, and as thus presented, his request did not fully embody the subject. The court were charged with the duty of disposing of it as it was made up
As to the offer of the notes in plaintiff’s handwriting, purporting to be signed by different persons since deceased, and to prove that plaintiff had presented them against the estates oj the said deceased persons, and claiming that said signatures were forgeries, to go to the jury for comparison of those signatures with' that to the note in suit, claiming that in certain particulars they were alike : defendant abandons his exception to the rejection of said offer; but he insists on his exception to the court’s rejecting the same offer with the addition of “ claiming that there were certain peculiarities in the writing of the plaintiff in the body of the notes so offered, that also appeared in the signature of the note in question.” We have no occasion to consider whether the notes offered would have been admissible if offered merely for the purpose of this comparison of the handwriting of the body of them with the signature of the note in question. Such was not the offer, but it was the first offer supplemented with the claim as to the peculiarities in the body of the notes. It was not the duty or the business of the* court to dissect and analyze an entire offer, which, as a whole, was illegitimate, and select and allow such elements of it as would be legitimate if standing alone, excluding the rest. We assume, from the abandonment of the claim that the fir^t offer of said notes was legitimate, that it is conceded that such offer was not legitimate. So, though we so hold it, we take
Judgment affirmed.