People v. . Risley

Hogan, J.: Defendant was convicted of a violation of section 810 of the Penal Law, with having on the 6th day of February, 1911, in the trial of an action in the Supreme Court, entitled Bennett v. Iron Clad Manufacturing Company, offered in evidence, as genuine, a certain document bearing date December 1st, 1904, knowing that the same had been forged and fraudulently altered by the insertion of the words “ the same ” therein. The unanimous decision of affirmance of the judgment of conviction by the Appellate Division precludes this court from a consideration of the weight of evidence. We deem it essential, however, in view of the determination of this appeal to refer to the principal facts relied upon by the People. The defendant had been for many years a member of the legal profession. He was senior member of the firm of Risley & Love; engaged in the practice of law in the city of Utica. Risley & Love wore attorneys for one Lewis Bennett, who was the patentee of a mechanical patent for improvements in metal baskets, and also the patentee of a design for metal baskets. On or aboiit October 14, 1896, Bennett entered into a contract with the Iron Clad Manufacturing Company by the terms of •which he granted to that company the sole and exclusive right, *24 license and liberty of making, using, selling and vending to others to be used and sold, baskets embodying the inventions described, and baskets embodying improvements covered by an application made by him. The company covenanted and agreed to pay to Bennett as a license fee a royalty on each basket embodying the inventions and designs made and sold by it during the continuance of said agreement; to keep full and correct books of account which would be open to the inspection of Bennett and which would show the number of baskets made and the number sold by it, and to furnish to Bennett statements of accounts semi-annually showing the number of baskets made and sold for the preceding six months, and at that time to pay to Bennett the royalties due under said contract. On or about December 1, 1901, an action was commenced in the Supreme Court by Risley & Love, as attorneys for "Bennett, to recover for baskets made and sold by the company; to have the contract declared forfeited, and for a return of certain tools and machinery. Judgment for the relief demanded, and a money judgment for royalties to September 30th, 1902, was awarded to plaintiff in that action. Upon appeal the judgment was affirmed. (Bennett v. Iron Clad Manufacturing Company, 90 App. Div. 611.) An appeal was taken by the company to the Court of Appeals which was dismissed. October 15th, 1904, Risley & Love, as attorneys for Bennett, instituted a second action against the company, by the service of a summons. October 18th, 1904, Mr. Risley wrote Mr. Hardie, who had represented the defendant in the former action, advising him of the commencement of the action to recover the amount of royalty on all baskets manufactured including solid and pieced metal baskets up to the date of the entry of an order dismissing the appeal to the Court of Appeals, to which Mr. Hardie replied under date of October 20, 1904, declining to furnish a verified statement, but wrote: “ We admit having made and sold both pieced metal and solid baskets *25 from the date of the entry of the judgment in this case up to the time of the dismissal of the appeal in the Court of Appeals and since that time, and you are at liberty to use this letter in proof of such fact, and this information alone is sufficient upon which a complaint can be expressed.” The company appeared by Mr. Robert W. Hardie, its attorney, October 27th. Thereafter, upon the petition of Bennett, the plaintiff therein, and the affidavit of Mr. Risley, application was made at Special Term for an order permitting the examination of the books of the defendant to enable plaintiff Bennett to frame a complaint. An order was granted requiring the company to make discovery of its books by depositing the same with the clerk of Herkimer county or, in lieu thereof, that the company should within ten 'days serve upon plaintiff’s attorneys, Risley & Love, a verified statement containing the whole number of solid sheet metal baskets manufactured and the whole number of piece metal baskets manufactured and the date of said manufacture between September 30th, 1902, and the 10th of October, 1904, and also a statement of the number of baskets sold and the dates of said sale. Upon the hearing of the application at Special Term the companjr submitted an affidavit of its general manager, accompanied by a memorandum attached thereto signed by Mr. Hardie, its attorney, in which he stated “ Defendant’s affidavits show that the defendant admits making the baskets referred to in plaintiff’s affidavits. There is, therefore, no question in regard to that point. The only point upon which the plaintiff desires information is the number of baskets made during a specified time by the defendant. This clearly is not essential in order to enable the plaintiff to form his complaint; he can state upon information and belief any number that he desires and on the trial he may subpoena the defendant to produce its books and submit to an examination. * * * ” The affidavit of Bennett refers to the former action, the disposition of the same, the contract of September 14th, 1896, and stated: *26 “ Your petitioner alleges that the defendant has since the' commencement of the action above set forth continued to manufacture and sell certain baskets embraced in the aforesaid agreement as adjudged and interpreted by the court and has continued to manufacture and sell these baskets up to June 9th, 1904 * * * ” “ That between September 30th, 1902, and June 9th, 1904, the defendant manufactured and sold large numbers of seamless metal and large numbers of pieced metal baskets for which it has never accounted nor paid royalties. * * * ” The company served upon the attorneys for Bennett, Risley & Love, a statement of metal baskets of all kinds made and sold by the company between September 30th, 1902, and October 10th, 1904, verified by its manager, in effect that it contained a true and correct statement of all the metal baskets of every kind and description manufactured and sold by the defendant between the specified dates. The complaint served alleged the ownership by Bennett of the two patents, the contract of September 14th, 1896, the manufacture and sale of baskets thereunder by the defendant, the former judgment in favor of the plaintiff, the appeals therefrom and disposition of the same: That by the former judgment it was determined that the solid sheet metal baskets and pieced sheet metal baskets made and sold by defendant were embraced in and covered by the terms of the contract, and that the defendant, during the pendency of the appeals, and down to October 10th, 1904, continued to make and sell and offer for sale sheet metal baskets within the terms of said contract, and had sold 6,441 sheet metal baskets. The company answered in the action about January 25th, 1905, denying that it continued to make, sell and offer for sale sheet metal baskets within the terms of said contract, or that it had on hand baskets covered by the contract. Upon the trial of the action on the 17th day of May, 1905, *27 the complaint was dismissed by direction of the court. Upon appeal by the plaintiff, Bennett, from the judgment so entered, the judgment was reversed and a new trial ordered. (Bennett v. Iron Clad Manufacturing Company, 110 App. Div. 443.) Upon a retrial of the case plaintiff recovered a judgment from which an appeal was taken; the judgment was reversed and a new trial was granted. (Bennett v. Iron Clad Manufacturing Company, 121 App. Div. 133.) The opinion of the Appellate Division in part stated: On the trial of the case, the plaintiff relied for proof of part of his cause of action upon the statement of defendant hereinbefore referred to, taken in connection with the order pursuant to which the statement was furnished as establishing admission by defendant of plaintiff’s cause of action for royalties and further stated that the affidavits used on the application for the order were not offered in evidence and did not appear in the printed record. Upon a retrial of the case in 1907, the affidavit alleged to have been forged or altered was offered in evidence, but was excluded by the trial justice. Additional evidence was offered by a witness called on behalf of the plaintiff. Judgment was had in favor of plaintiff; an appeal was again taken to the Appellate Division by the company, where the judgment was reversed and a new trial ordered upon the ground that the additional evidence received was lacking in probative value to justify the court on appeal sustaining the same. (Bennett v. Iron Clad Manufacturing Company, 127 App. Div. 943.) Upon the next trial in February, 1911, the affidavit was offered in evidence. Upon examination of the same, it was claimed by the defendant that the words “ the same ” had been inserted in the original affidavit of the manager of the company, and after an inspection of the paper a juror was withdrawn and a non-trial was ordered.. It is asserted by the People that the affidavit in question was *28 offered in evidence by the defendant for the purpose of supplying proof necessary to meet the objection made by the Appellate Division: that the affidavit of the manager of the company had been altered or forged, whereas it originally read: “ Deponent admits that between September 30th, 1902, and June 9th, •1904, the defendant manufactured and sold seamless and pieced metal baskets for which it has never accounted to the plaintiff nor paid royalties,” and as changed read: “ Deponent admits that between September 30th, 1902, and June 9th, 1904, the defendant manufactured and sold ‘ the same ’ seamless metal and pieced metal baskets for which it has never accounted to the plaintiff nor paid royalties.” Evidence was offered by the People tending to show that the defendant was at the clerk’s office of Herkimer county on Thursday, February 2d, 1911, at about the noon hour and asked a clerk for the papers in the case of Bennett v. Iron Clad Manufacturing Company; that the papers were obtained from the vault and taken to a table in the easterly side of the room, where the defendant was engaged for a time in looking over the papers; that again on Friday at about the same hour the defendant was in the office of the clerk of Herkimer county, and while there again looked over the papers, selected some of them and gave them to the person in charge with the request that they be produced in court the following week. The People claimed that the inference was that the defendant abstracted the paper in question from the office of the clerk on his first visit, took the same to Utica and inserted therein the words “ the same ” and returned the papers to the clerk’s office on the following day. Samples of typewriting made upon two typewriting machines in the office of the defendant in the city of Utica were produced upon the trial. On behalf of the People it was claimed that the words “ the same ” had been inserted by the use of one of the typewriter machines in the office of defendant known as an “ Underwood machine.” It was argued by counsel for the *29 appellant that two specimens of typewriting, Exhibits Numbers 17 and 18, made upon the machine in the office of the defendant two days subsequent to the alleged offense, were not such standards as the law recognizes and were improperly received in evidence. I am of the opinion that the question has been decided adverse to the contention of defendant. (People v. Storrs, 207 N. Y. 147.) Counsel for appellant urged error on the part of the trial justice in permitting a witness to testify as to how often certain assumed conditions in letters in a tjrpewriting machine would occur in other machines based on the law of mathematical probabilities. It appeared by the testimony of an expert called by the People that he had inspected some 20,000 typewriter machines and never saw one that was perfect; that the alignment of the machine was practically the “ heart ” of the same, that the spacing, key, levers, rolling, space, carriage, all these center around the alignment, and a machine cannot be manufactured so the alignment will come perfect. Another expert witness testified that “ alignment is how the letters approach to or recede from the base line. These letters sometimes strike below the line and above the line, and that is common observation I think in looking at typewriting. A letter may be normal in character in the usual typewriting operation; it may be on the line practically all the time, but it can be made to strike above or below the line. Sometime you will find the letter above the line, next time you will see it is on the line.” Attention has been called to this evidence in view of the evidence offered by the People to show that it ivas highly improbable if not impossible that defects similar to those in the machine owned by defendant exist in any other typewriting machine. The witness, who was a professor of mathematics in one of the universities of the state, under repeated objections by counsel for defendant, was permitted to testify that by the application of the law of mathematical probabilities the chance *30 of such defects being produced by another typewriting machine was so small as to be practically a negative quantity. -The witness asserted that when the facts are ascertained, the application of the law of probabilities to them is a matter of pure mathematics and not of speculation or opinion. He defined the law of probabilities as “ A proper fraction expressing the ratio of the number of ways an event may happen divided by the total number of ways in which it can happen.” The various defects claimed to be visible and pointed out by the experts in the specimens of typewriting made upon the defendant’s machine corresponding to like defects in the letters of the two words “ the same ” in the alleged altered document were called to the witness’ attention by the district attorney, and he was. asked to apply the law of mathematical probability thereto. For illustration he was asked: “ If it be assumed that it is as probable that any given letter will slant as ib is it will not slant,, are you able to ascertain what is the probability that the letter 51 ’ in the six letters, t, h, e, s, a, m, will slant and the others remain perpendicular? ” He answered: “ One in sixty-four.” Practically the same form of question was put to him in regard to missing serifs on other letters and embracing various features pointed oub by the experts, and by a process of compounding these results concerning each of the particular defects the witness was permitted to give his conclusion that the probability of these defects being reproduced by the work of a typewriting machine other than the machine of defendant was one in four thousand million, which was, of course, equivalent to a statement that it could never occur. The witness, so far as the record discloses, was not qualified as an expert in typewriting.; he had never made a study of such work, or of the machine claimed to have been used for the purpose of interpolating words in the document offered in evidence, nor did he take into consideration in arriving at his result the effect of the human operation of such a machine, that is whether the *31 same defects would always be discernible, no matter who was the individual operating the machine. These factors and many others which we cannot foresee and which, in all likelihood, are beyond the possibility of any human being to ascertain, would enter into any calculation of this character. The statement of the witness was not based upon actual observed data, but was simply speculative, and an attempt to make inferences deduced from a general theory in no way connected with the matter under consideration supply the usual method of proof. Evidence of that character is unlike that of the Northhampton table of expectancy in use by insurance companies,, and at one time receivable in evidence upon the trial of a cause in our courts, for the reason that such table is based upon the result of actual observation. Notwithstanding the use of that table for a long period of time, it is common knowledge that within a few years the Carlisle table of expectancy which in many instances increases the probability of life, has been adopted and is in use in this state. (Rule 70, Supreme Court Rules.) A table of expectancy of life based on actual experience is the only practical and satisfactory rule for determining the expectancy of life of a particular individual. That rule is used from necessity when the fact to be proved is the probability of the happening of a future event. It would not be allowed, for illustration, if the fact to be established were whether A had in fact died, to prove by the Carlisle table he should still be alive. The fact to be established in this case was not the probability of a future event, but whether an occurrence asserted by the People to have happened had actually taken place. Similar evidence seems to have been admited in the trial of the famous Howland Will case in the United States Circuit Court in Boston, Massachusetts, in 1868, where one of the questions was whether the words of the testator’s name in the contested writings exactly coincided with the same name in tlm *32 uncontested will held by the plaintiff. Professor Benjamin Peirce of Harvard University, the most famous mathematician of his time, was permitted to testify that the chance of the genuine production of such coincidence as that of the three signatures was that of one to two thousand six hundred and sixty-six million of millions of millions of times, in other words, ' that a person would not write his signature exactly alike more than once in so. many millions of times that it would transcend all human experience. This evidence is commented upon in a note to section 9, Wharton’s Criminal Evidence (9th ed.), and the author there points out not only the unreliability of testimony in criminal cases based upon the law of probability, but numerous instances where authors of works upon that subject have acknowledged errors in the adoption of such a rule. The Howland Will case is reported quite fully in 4 American Law Review, page 625, but no judicial review of the admissibility of the evidence referred to was had, as the case was disposed of upon another point (Robinson v. Mandell, 3 Cliff. [U. S. Circuit Rep.] 169), and thereafter the parties adjusted their differences. The admission of the evidence was error, prejudicial to the interests of the defendant in this case, which had already been burdened by expert testimony, and was an attempt to draw a line between assumed fact and reasonable conclusion to an extent never recognized by this court. For this reason the judgment of conviction should be reversed and a new trial ordered.