Lauer v. Posey

Opinion by William W. Porter, J., The defendant offered in effect to prove by a witness that the latter had seen a paper in the hand writing of the payee of the notes sued upon, upon which were written words and letters similar to those alleged, to be changed in the notes in suit, for the purpose of showing that the payee was practicing to carry on the forgery alleged to have been perpetrated in the notes in suit. It is to be observed that the paper upon which these writings were said to have been made, was not produced or offered in evidence. In Wheeler v. Ahlers, 189 Pa. 138, a card was admitted in evidence, which was found in the office [547] of an alleged forger, having upon it memoranda in his handwriting showing practice in changing figures in the manner charged by the defendant as having been done upon the note in suit. Its admission, after proper identification, raised palpably a different proposition from that presented in this case. With the card actually before the jury, they were able to pass upon its authenticity, upon the character of the marks upon it, whether the alterations experimented with on the card were similar to those alleged to be upon the note, and to what extent the card itself was proof of the alteration on the note submitted to the jury. Here, the offer was to substitute the opinion of a witness as to the similarity and authenticity. He was asked to speak of these important matters after a number of years. In the absence of the paper itself no method, known to the trial of causes, could be found to test the correctness of the witness’s statements. The testimony did not purport to come from one who saw the marks made, and the result of the testimony could be no more than the expression of an opinion without adequate data by which the jury might measure its value. To have admitted the testimony, therefore, would have transferred to the witness functions which could alone be performed by the jury. To put the apt expressions used by Judge Thayeb, in Pennsylvania Co. v. Phila., etc., R. R. Co., 153 Pa. 160, in negative form: it was not “ putting in evidence the workshop and the material in and by which the nefarious business had been carried on and by means of which the forgeries in this case had been accomplished.” It did not show the alleged forger “ in the very act, as it were, of practicing for the forgeries which he made.” It may be conceded that where the defense is based upon a scheme to defraud, the rules relating to the admissibility of evidence must be relaxed. But we are not prepared to approve the admission of testimony having the defects above indicated, and, therefore, confirm the action of the court below in the ruling made. The second assignment is to the rejection of an offer to prove forgery by the payee, of other notes in transactions with which neither the plaintiff nor the defendant had any connection and without the production of the notes alleged to be forged. The court below permitted the introduction of such testimony when the notes alleged to have been forged were produced, [548] but drew the line at the introduction of general oral testimony respecting alleged forgeries of notes of which the jury were not intended to have inspection, and in this there was no error. The third, fourth, fifth, sixth and seventh assignments are to rulings made by the court below restricting or rejecting testimony attempted to be introduced through cross-examination. We find no abuse to have been committed of the broad discretion lodged in a trial judge in ruling upon matters relating to cross-examination. The eighth assignment complains that the trial judge affirmed the following point: “ It being the uncontradicted evidence that the plaintiff received the notes in suit before they came due for a valuable consideration, it is immaterial whether the defendant was indebted to A. Harvey Tyson, or not, when she issued the notes.” No attempt is made to contradict the testimony of the plaintiff that he took the notes' before they were due. The cash used in part payment for them is traced by the testimony by means of the check given. The balance of the consideration was the surrender of certain other promissory notes. True, the plaintiff was unable to remember the names of the parties upon these surrendered notes, but no testimony challenges the genuineness or the value of the notes. Under such circumstances, there was no necessity of submitting to the jury the question whether the plaintiff had taken them for value before maturity. The refusal of the point requesting instruction that the jury should find for the defendant, if she was not guilty of negligence in signing the notes, was not error. The point ignored the condition that the jury should find that a forgery had been committed. The other assignments are without merit, since under the law, correctly stated in the charge of the court, and the submission of the case to the jury, their finding of fact is that no forgery was committed. The lack of observance of our rules in the presentation of the assignments of error would have justified us in ignoring the latter, but we have preferred to dispose of the case on its merits. The judgment is affirmed.