Martin v. . Knight

CONNOR, J., after stating the facts: The defendant’s exception to his Honor’s refusal to submit the issue in regard to the tax list is based upon the contention that, by Eevisal, sec. 5219, subdiv. 11, and Acts 1907, ch. 258, sec. 32, a failure to list with a view to evade the payment of taxes on solvent credits prevents their recovery by an action at law or suit in equity in the courts of the State until they are listed and taxes paid thereon. The matter involved in the issue is not set up or pleaded in the answer as a bar to the action, and was not therefore issuable. Only matters alleged and denied or new matter alleged in the answer by way of defense are to be submitted to the jury by specific issues. Without passing upon the question whether the failure to list the note and due *568 bill for taxation, “with a view to evade the payment of taxes thereon,” is an affirmative defense which must be set up in the answer, or whether it may be taken advantage of upon the general denial, we entertain no doubt that, unless pleaded, it may not be made the subject of an issue. As has been frequently said by this Court, issues arise upon the pleadings. It will be observed that the statute does not make the failure to list solvent credits an absolute bar to their recovery, but provides “that they shall not be recoverable * * •* until they have been listed and taxes paid thereon.” It would seem that the failure to list does not destroy the cause of action, but postpones recovery thereon until they are listed and the tax thereon is paid. It would be but fair to bring the matter to the attention of the court by some appropriate pleading, to the end that the creditor may either list and pay the tax or show that the “note, claim or other evidence of debt” is not “subject to assessment and taxation,” as, for instance, that it is not solvent, or that plaintiff was himself indebted in a larger amount than all of his solvent credits [Revisal, secs. 5219 (5), 5227], or that for any other reason he was not required to list and pay tax thereon. It was not the purpose of the Legislature to release the debtor for failure to list by the creditor, but to postpone the recovery of the debt, if subject to taxation, until the tax is paid. It is not clear that the liability to assessment is to be tried by the jury. It may be more convenient for the court to inquire into it. We note the suggestion that, instead of delaying the trial, the court proceed to judgment and order a stay of execution until the debt is listed and the tax paid thereon. This provision has recently been placed in our revenue law .and, so far as we are advised, has not before been brought to the attention of the Court. Its interpretation is not before us, and we forbear saying more than is necessary to a decision of the exception. His Honor correctly declined to submit the issue. Plaintiff introduced IT. T. Pratt, who testified that he was *569 acquainted with tbe handwriting of Pallen. He was shown the note and the due bill, and testified that the signatures were “those of Fallen.” The body of the'note was in the handwriting of the plaintiff, E. L. Martin. This, we understand, was conceded. Defendant, upon cross-examination, asked the witness to look at the letter “L” in the signature and at the same letter in the body of the note, and say whether they were not the same handwriting. He answered: “I can see a difference in the two.” He was asked to point out to the jury the difference. The defendant’s counsel asked the witness to take the mote to the jury box and point out to the jury the difference. Plaintiff objected. His Honor sustained the objection, and defendant excepted. Dr. Ellington, a witness for defendant, having testified that he was acquainted with Fallen’s handwriting, was asked to examine the same letter in the body of the note and in the signature. He said: “They are very much alike.” In his cross-examination he was shown a paper, “No. 1,” by plaintiff, containing W. L. Fallen’s signature in two places. The witness testified that the first signature was in Fallen’s handwriting; the other was not. Hpon redirect examination defendant’s counsel asked him to take the paper and show the jury why he did not think that the signatures were in the same handwriting. This was objected to, and the objection sustained by his Honor. Defendant excepted. The question presented upon these exceptions, and others of the same character in the record, is whether, under examination in chief or cross-examination, a nonexpert witness, having testified that he was acquainted with the handwriting of the person alleged to have signed the paper in controversy, may, after expressing an opinion in regard to it and being shown a writing conceded to be genuine, show two papers to the jury and by making comparisons between them explain and point out to the jury the similarity or difference, as the case may be. Defendant’s counsel insist that this question has not heretofore been decided by this Court. Plain *570 tiff’s counsel insist, on the contrary, that it is within the rule laid clown in Outlaw v. Hurdle, 46 N. C., 150, and the cases following it. If this is true, defendant’s counsel say that the decision in that and other cases is not sound in reason and is out of line with the overwhelming weight of authority. The question is one of much practical importance in the trial of issues involving the genuineness of handwriting, and should, so far as judicial decision can do so, be put at rest in our practice. It must be conceded that the decisions in Outlaw v. Hurdle, supra, and Fuller v. Fox, 101 N. C., 119, are not in harmony with decided cases in other courts or the law as laid down in the best-approved works on the law of evidence. In an exhaustive note to University v. Spalding, 71 N. H., 163 (62 L. R. A., 817), it is said that comparison of handwriting by the jury is allowed in every State save North Carolina and Louisiana, and our own decisions are said to be “unique.” Mr. Wigmore, in an exhaustive note citing cases from every court in the Union, regards the question as unsettled in this State. We have given to our decisions a careful examination, with a view of learning how this Court reached and has apparently adhered to a conclusion which, with the single exception named, appears to be at variance with the opinion of every other court in the country. The rules regarding the admissibility of evidence have for their purpose the ascertainment and establishment of truth. The courts have, in response to the demands of a constantly advancing civilization and enlightened jurisprudence, relaxed the rigid rules of evidence which formerly prevailed, and given to the jury all of the light and information possible to aid them in coming to a correct verdict. In no department of jurisprudence has there been more intelligent, enlightened progress than that made pertaining to the law of evidence: This is seen in both judicial decisions and treatises by thoughtful, scholarly authors, frequently resulting in remedial legislation. Prior to the passage of Lord Denman’s Act in England, no person inter *571 ested in tbe controversy was permitted to testify, althongb, most illogically, if during the trial he surrendered his interest or executed a release he became at once a competent and credible witness. This wise and strangely belated statute was not adopted in this State until 1866. It was not until 1879 that a person charged with a crime, although a mere misdemeanor, involving at most a small fine, was permitted to testify, while after the act of 1866 he could be heard as a witness in his own behalf in a suit involving his entire estate. Persons convicted of certain crimes were incompetent, and negroes not permitted to testify against white persons. Juries were permitted and compelled to grope about in the dark, guessing at verdicts, when frequently persons within the call of the court, able and anxious to aid them, were excluded from causes neither sound in reason nor sustained by experience. Gradually, and probably in that respect wisely, the courts and, when they failed, the Legislatures have removed the restrictions and permitted persons to testify without regard to- interest or crime, relying upon that most certain test of truth, cross-examination, and the saving common sense and experience of the jury to weigh the testimony, sift out the false and take the true, to guide them to a verdict. In accordance with this trend of thought, which has done so much to remove reproach from the administration of justice, we think it our duty, when called upon by the arguments of learned counsel, to re-examine any rule of evidence, test its soundness in the light of a larger experience, a broader view and the best thought of Judges in other courts. If, in obedience to precedents since reviewed and reversed, any rule of evidence has been adopted which is found to be unsound and unsuited to reaching the best results, we should, with caution and a full recognition of the principle of stare decisis, not hesitate to review the opinions and bring the law into harmony with the best-matured thought upon the subject. The question in regard to the right of the jury to compare *572 handwriting in the trial of cases wherein the genuineness of a paper-writing or signature is involved first arose in this Court in 1853. The case of Outlaw v. Hurdle, 46 N. C., 150, was tried before Judge Manly, afterwards an Associate Justice of this Court, and the parties were represented by the most eminent counsel in the State. Pearson, J., in opening his opinion, says: “This case, as well on account of the amount involved as by reason of the many points made upon the trial, has excited much interest and called for a high degree of ability on the part of the Judge who presided.” The verdict was for the propounders, and the caveators appealed. It appears that, among other reasons assigned by the caveators for attacking the will, which was holograph, was, it began with the words, “It is my wish and desire,” etc., whereas, they alleged, the testator always “contracted the words fit is’ so as to make them fit’s.’ ” In this connection the caveators introduced a number of letters written by deceased, in which he wrote “it’s” for “it is.” These letters, together with others introduced' by propounders, were 'submitted to the jury without objection. The question of the right to have the jury examine the letters was not presented in any exception, and therefore not argued. It seems that no question was made in regard to the action of the Judge in this respect. This is of importance, in view of the manifest care with which the trial was conducted by court and counsel. Pearson, J., says: “The cav-eators had a right to prove that the deceased always in writing-contracted the words, * * * but they had no right to put the letters of the deceased into the hands of the jury, and, as it seems to us, his Honor has committed an error in favor of the caveators in allowing the letters to be looked at by the jury, and in telling them that, as they had a right to look at the letters for one purpose, there was no help for it, they might make a comparison of handwriting. This shows that it was wrong to allow the jury to see the letters at all. A jury is to hear the evidence and not to see it.” The judg- *573 rnent was affirmed. But one authority is cited by the Court— State v. Gerkins, 23 N. C., 121. A reference to that case discloses that it was an indictment for “biting off the ear of tbe prosecutor.” No question of handwriting or comparison of anything was presented or suggested. We are not able to perceive how it was in any way related to the question of comparison of handwriting or the function of the jury. In view of the fact that the question had not been raised before 1853, and of the further fact that no point was made about it in the trial of Outlaw v. Hurdle, wherein every debatable question was raised and discussed, we think it not improbable that, as said by the editor of the sixteenth edition of Greenleaf on Evidence, “The practice of proving handwriting by submitting specimens to the jury was originally orthodox and unquestioned.” The controversy, which has been carried on in the English and American courts for so many years, and “which has resulted in such a contrariety of opinion,” is not whether comparison of handwriting may be made by the jury, but what papers may be used as the basis for comparison, and the competency of witnesses, experts and nonexperts, to do so. That question is not involved in this appeal. In Doe v. Newton, 31 E. C. L., 328, Denman, C. J., said: “There being-two documents in question in the case, one of which is known to be in the handwriting of the party, the other alleged but denied to be so, no human power can prevent the jury from comparing them with a view to the question of genuineness.” All of the Judges wrote opinions. Eollowing Outlaw v. Hurdle is Otey v. Hoyt, 48 N. C., 407. This was an action on a bond. Eor the purpose of proving the execution a number of witnesses were introduced, who testified that they knew the handwriting of Norcott, the testator of defendant. A careful examination of the statement of the case shows that there was no suggestion that any papers be shown the jury or that they be permitted to compare any handwriting. It is true that in sustaining the-ruling of the court excluding evi *574 dence of a witness it is said: “Writings in general are not properly submitted to tbe inspection of the jury; if used on thé trial of a case they may be read to them,” citing Outlaw v. Hurdle, supra. Watson v. Davis, 52 N. C., 178, was an action of assumpsit upon an open account. No writing was in evidence and no question of handwriting involved. The Judge permitted the jury to take the account with them, defendant excepting. Pearson, J., said: “The jury ought to make up their verdict upon evidence offered to their senses, i. e., what they see and hear in the presence of the court, and should not be allowed to take papers which have been received as competent evidence into the jury room, so as to make a comparison of handwriting or draw any other inference which their imaginations may suggest.” In Burton v. Wilkes, 66 N. C., 604, the Judge handed the jury as they retired a memorandum or “slip of paper” containing some calculations. The question of handwriting was not presented. Boy den, J., disposes of the exception by saying: “We think his Honor- was in error in delivering Exhibit E to the jury,” citing Outlay/s case and Watson"s case, supra. In Yates v. Yates, 76 N. C., 142, there was no suggestion of comparison of handwriting by the jury. It was held that a witness who had qualified himself as an expert in regard to handwriting could compare the signature in controversy with one admitted to be genuine and express an opinion based upon such comparison. Bod-man, J., said: “This was permissible under the decision in Outlaw v. Hurdle. The general practice seems to be more liberal than was .approved in that case.” The learned Justice cites Greenleaf on Evidence and several cases. In Williams v. Thomas, 78 N. C., 47, the point presented was whether the Judge was in error in handing papers used on the trial to the jury, appellant excepting. We find no decision other than Outlaw v. Hurdle, supra, in which the question involved in this .appeal is presented. We have seen in what manner the question arose and the consideration given to it. With all of *575 the weight to which the opinion of the great Ohief Justice is entitled, it cannot be claimed" that the question was either presented or decided in the sense in which authorities are made, closing the question to consideration otherwise than by overruling the case. The course pursued by the Judge was not made the basis of any exception, but was treated as “orthodox and unquestioned.” The judgment appealed from was affirmed. Tested by those well-settled rules by which appellate courts are guided in respect to precedents and authorities, it would seem that the question was an open one. We find, however, that it was fully presented and decided in Fuller v. Fox, 101 N. C., 119. Mr. Justice Davis, after conceding that the law was not uniform, proceeds to say: “But in most of the States, and with rare exception, when there is not statutory regulation upon the subject, the law is held to be as laid down by Gaston, J., in Pope v. Askew, 1 Ired. (23 N. C.), 16.” When we turn to this case we find that no such question was presented or decided. The action was for 'writing and publishing a libel. For the purpose of proving that defendant wrote the letter, plaintiff offered to show his handwriting by a witness who was not an expert and who did not qualify himself to express an opinion, having no knowledge of defendant’s handwriting. He had received a letter purporting to have been written by defendant, but knew nothing more about it. Thereupon plaintiff offered to show by another witness that he had heard defendant say that he wrote the letter received by the witness. I). M. Alexander, a witness for plaintiff, had undertaken to show defendant’s signature to some contract. The first witness was then asked to compare the handwriting in the contract, the letter addressed ,to him and the alleged libelous letter, and give his opinion whether they were written by the same person. Three witnesses for defendant swore that they knew defendant’s handwriting, and expressed the opinion that the letter in controversy was not in his handwriting. One of these witnesses also expressed the *576 opinion, that tbe letter to plaintiff’s witness, except tbe signature, was not in defendant’s handwriting. Tbe papers were not given to tbe jury. After being out some time they returned and asked for them; tbe court declined to permit them to be taken, whereupon some question was raised by tbe jury in regard to tbe testimony of a witness about certain letters in tbe contract, and tbe letter to one of the witnesses. Tbe court permitted tbe jury, in its presence and “for this special purpose,” to compare tbe particular letters referred to. Tbe decision is based upon tbe failure of plaintiff’s witness to qualify himself to express an opinion, and tbe further fact that neither of tbe papers used ,as a basis of comparison was admitted to be genuine. No reference is made to tbe action of tbe jury, tbe opinion concluding with tbe statement: “We see no legitimate reason for which either of tbe instruments was received in evidence. It is worthy of note that Judge Pearson, in Outlaw v. Hurdle, does not'cite tbe case as authority, but does cite Gerkins’ case, decided at tbe same term'. Judge Gaston's opinion is based upon Doe v. Suckermore, 5 Adol. & Ellis, 31 E. C. L., 406, which makes no reference to tbe question under discussion. Pope v. Askew was cited by Nash, C. J., in McKonkey v. Gaylord, 46 N. C., 94, upon tbe qualification of a witness to express an opinion in regard to bandwriting. This was at tbe same term at which Outlaw v. Hurdle was decided, thus, we think, indicating that tbe Court did not regard Judge Gaston’s opinion as having any relation to tbe question under discussion in that case. Pope v. Askew has been frequently cited upon tbe question of opinion evidence in regard to bandwriting. Munroe’s Cited Oases. Tbe learned Justice also cites Rowell v. Fuller, 59 Vermont, 688, and says “that- in most of tbe cases relied on by counsel for defendant tbe papers permitted to go to tbe jury for inspection and comparison were such as were in evidence in tbe cause for other purposes, or such as were first passed upon by the court and adjudged to be genuine.” A careful reading *577 of tbe able opinion of Taft, J., in that ease, sustains tbe language of -Judge Davis in regard to tbe standard of comparison, but expressly bolds that wben sucb papers are offered as a standard for comparison they should be submitted to tbe jury for inspection. He says: “Let tbe court determine whether tbe signature is a genuine one or not. If not genuine, exclude it from tbe jury; if genuine, let it be used by them in comparison with tbe disputed one.” Tbe only question discussed was whether tbe court should pass upon tbe genuineness of tbe writing as a standard for comparison. That, wben found to ■ be so, it should be submitted “as a standard of comparison with tbe one in dispute,” is said to be tbe rule. We have called attention to tbe language of tbe learned Justice in Fuller v. Fox and tbe cases cited by him to show that, as in other cases, tbe court has inadvertently confused tbe question of standard of comparison, tbe competency of tbe witness to express an opinion, with tbe right of tbe jury, after these preliminary questions are passed upon, to see tbe paper for tbe purpose of comparison. This tendency is noted by Professor AVigmore in bis note to section 578, Greenleaf Evidence (16th Ed.), wherein be says: “So far as proof by similarity was allowed at all, no discrimination was made against submitting specimens to tbe jury.” Defendant’s counsel proposed to have tbe witnesses who bad testified that they knew Eallen’s band-writing and expressed their opinion in regard to tbe genuineness of tbe signature, and who also expressed opinions in regard to tbe similarity of the letter ’“L” in the body of tbe note and tbe signature, to show the note to tbe jury and point out to them tbe difference or similarity. It is difficult to see why they should not be permitted to do so, unless tbe decisions in Outlaw v. Hurdle and Fuller v. Fox prohibit it. It is clear that no other decision does so. We think that in tbe light of those decisions tbe witnesses could show to tbe jury tbe paper upon which the note and tbe disputed signature are written, and explain to them their reasons for saying that *578 there was or was not a difference between the letter “L” in the body of the note and in the signature. Eor the purpose of explaining their testimony and the situation of persons or objects it is well settled that maps, diagrams, drawings or photographs.may be used. State v. Whiteacre, 98 N. C., 753; State v. Willcox, 132 N. C., 1120; Greenleaf Ev., 419. On a question of paternity the child may be shown to the jury, and they may, for the purpose of making comparison in respect to resemblance, see the parents and child. State v. Woodruff, 67 N. C., 89. In Hampton v. Railroad, 120 N. C., 534, a photograph was rejected, but in Davis v. Railroad, 134 N. C., 300, we followed the dissenting opinion of the present Ohief Justice, sustained by the overwhelming weight of authority, so the jury may, if the Judge think they will better understand the matter in controversy, view the premises. To restrict the witness to an explanation .and description of loops, curves, lines, shades, etc., etc., found in two letters which he is comparing, concealing from the jury the very object about which he is talking, seems to us both unreasonable and unsafe as a means of enlightening them. The purpose of the evidence is to aid the jury. Why convey information through the sense of hearing and exclude the sense of seeing ? Oan it be doubted for .a moment that they would receive a clearer, more intelligent view of the matter in controversy if permitted to have the explanation made with the aid of their sight ? . We know from experience that arguments in this Court are illuminated and our apprehension of the matter in controversy made clearer by maps in cases involving questions of boundary, or models and photographs in cases involving the management of machinery or the situation of parties. It was supposed in the past that the average juror was not sufficiently intelligent — educated—to comprehend the fine shades of difference in handwriting. Whatever may be thought of the soundness of the reason in the past, it is manifest that it has but little force at this time. As education and *579 intelligence have increased and tbe methods of illustration improved, the capacity of the “average man” to write and pass upon the handwriting of others has advanced. It may be that language used by this Court in several of the cases cited and discussed by us is capable of a construction which would prohibit the course of examination proposed by the defendant. If so, we think such language was not accurate or not necessary to the decision of the question involved in such cases — that the jury could not take the papers into the jury room for the purpose of comparison. It is true that the Court said, in Outlaw v. Hurdle, that jurors must hear and not see evidence. The expression is rather more epigrammatic than accurate. This is shown by the language of the same Judge-in Watson v. Davis, in which he says: “The jury ought to make up their verdict upon- the evidence of their senses, i. e., what they see and hear in the presence of the court.” The real point decided in these and other cases is that the jury may not take the papers with them into the jury room for the purpose of making the comparison. It is not necessary that in this appeal we bring the correctness of the decision in that respect into question. We simply decide the question presented by the exception — that the witnesses should have been permitted to take the note to the jury and show to them the genuine and disputed pa'rts, explaining to them their reasons for saying that they were or were not different. It may be that the reason of the thing would carry us further. That question is not necessary and would not be proper to discuss here. In England the subject is regulated by statute. 28 and 29 Vict., ch. 18. In many of our States statutes have been enacted prescribing the practice. The English statute is the result of the largest experience and observation by judges and lawyers. It is well guarded against dangerous experiment, but opens the door to safe, reliable information. A discussion of its provisions may be found in 3 Taylor on Ev., sec. 1869, etc. In construing the *580 New York statute, Van Brunt, P. J., says: “Therefore, it is apparent that the submission of a writing to a jury must be in connection with the testimony of witnesses in regard to the validity or authorship of the various handwritings, and that, independent of the examination of witnesses, such handwrit-ings cannot be submitted to the jury for the purpose of arbitrary comparison by them. In other words, the handwritings can only be inspected by the jury in aid of the testimony of witnesses in reference to the authorship of the handwritings in question.” People v. Pinckney, 67 Hun., 428. With this limitation upon the right of the' jury to examine and compare handwriting, we can see no reasonable ground for withholding it. The subject is of sufficient importance to justify the attention of the Legislature. The questions regarding the competency of witnesses to testify in regard to handwriting, and the standard of comparison, are settled by a number of well-considered decisions, the last being Tunstall v. Cobb, 109 N. C., 316. While there was a dissenting opinion in regard to the application of the law in that case, the Court was unanimous as to the general rule. The opinion of Mr. Justice Avery in that respect adopts the generally received doctrine in this and many other States. It has been followed in this State. Lowe v. Dorsett, 125 N. C., 301; Ratcliff v. Ratcliff, 131 N. C., 425. We do not question the decisions cited and commented upon, in which the Judge permitted the jury to take into the jury room papers, etc., used on the trial. We have cited them for the purpose of distinguishing them from the facts in this appeal. The defendant’s exceptions to the refusal of his Honor to permit the witness to shoAV the jury the papers and point out to them points of difference or similarity in regard to which they have expressed opinions are ' sustained. Defendant proposed to introduce tax books and original lists for the purpose of showing that no note or due bill was listed by plaintiff for taxation. While the record does not *581 so state, we assume from the argument that it was proposed to show that no solvent credits were listed by plaintiff for the years to which the proposed list related. Tax lists have been1 admitted in actions for the recovery of land to show that the party against whose claim they were used did not list the land, and draw from the failure to do so the inference that he was not claiming to own it. Thornburg v. Mastin, 93 N. C., 259; Austin v. King, 97 N. C., 339; Allen v. McLendon, 113 N. C., 319; Bernhardt v. Brown, 122 N. C., 587. On a question of insolvency, Shober v. Wheeler, 113 N. C., 370; to show the value of personal property, Daniels v. Bowler, 123 N. C., 35. In these cases the law required that the property, number of acres, name of tract, etc., be stated on the list; that the personal property be valued by the taxpayer. While the Court has always referred to this class of evidence as of a “low order,” it has admitted it as declarations of the party. In regard to solvent credits a different rule prevails. The solvent credits of the citizen which are “subject to assessment and taxation” are the notes and other evidence of debts owing to him, less the amount of bona 'fide collectible debts which he owes as principal debtor. These are to be deducted from the credits, and only the amount in excess listed. The name of the debtor or the amount of any specific debt is not to be listed. Eevisal, secs. 5217-5219. The blank sent to the commissioners by the State Auditor (section 5216), which the taxpayer is to fill up, sign and swear to, does not provide for any schedule of credits; no space or column is provided therefor; hence the lists would furnish no information and constitute no ground for drawing an inference in regard to the solvent credits of the plaintiff. They would not prove any fact throwing light upon the issue. If the plaintiff owed debts in excess of the amount due him he would list no solvent credits. It is clear that a paper-writing or record containing no information upon which an inference could be drawn in regard to the matter in controversy is irrelevant and inadmissible for *582 any purpose. Tbe exceptions to bis Honor’s refusal to permit tbe introduction of tbe tax lists must be disallowed. We ■bave examined tbe entire record and find no merit in tbe .other exceptions. Eor tbe error pointed out in regard to proof of tbe disputed bandwriting there must be a New Trial.