Lyon v. Lyman

Daggett, J. The question now presented for discussion, is, whether the whole or any part of the testimony was admissible. If not admissible in whole, a new trial must be granted; otherwise not. It is not to be concealed, that there are conflicting opinions on these points, both in our elementary writers and in the decisions of courts, in this country and in Great Britain. These general positions on this subject, may be considered as established, by the modern cases. First, that the same rule prevails in civil and criminal cases. Francia’s case, 6 St. Tr, 70. Layer’s case, 6 St. Tr. 275. Rex v. Dr. Hensey, 1 Burr. 642. Lord Preston’s case, 4 St. Tr. 446. De la Mott’s case, 21 Howell’s St. Tr, 810. Rex v. Gator, 4 Esp. Rep. 117. The Attorney General v. Le Merchant, Bul. N. P. 236. 2 Stark. Ev. 658. Secondly, a witness may be called and asked if he has seen a particular person write. If he answers affirmatively, he may be asked whether he believes the paper in dispute to be his hand-writing. 1 Phill. Ev. 422, 2 Stark. Ev. 652,3,4. and the numerous cases there cited. This kind of evidence may be so weak as to be unsafe to act definitively upon, or so strong as to produce conviction, according to the means of knowledge of the -witness ; still it is to be received and weighed by the jury. 1 Phill. Ev. 422. The difference in weight of the testimony of a person who had written in the same counting-room or office with another for years, and -that of an almost stranger who had never seen him write more than once or twice, would be very great. Thirdly, a witness may testify to the hand-writing of a person, though lie may never have seen him write, from a correspondence with him, or from a familiar acquaintance with his writings. 1 Phill. Ev. 424. 4 St. Tr. 338. Titford, v. Knott, 2 Johns. Ca. 211. Smith’s Rep. First Cir. U. S. 160. 2 Stark. Ev. 652. & seq. With these positions in view, I will examine ' the questions, though not in the order presented on the motion. 1. The first class of witnesses had seen the defendant write — -They believed it to be his hand-writing ; but on cross68 examination, they said, they did not know that they were suf-ficently acquainted with it to determine it to be his, except by comparing it with the writings proved to be genuine. Surely, the objection here was entirely to the weight of their testimony, and not to their admissibility. A fair paraphrase of their testimony is, that they believed it to be his hand-writing from having seen him write. This, according to the second position, would render the testimony admissible. But they knew it to be his, by comparing it with his other writings. Again, this testimony could not be rejected consistently with the third position, viz, a knowledge by a correspondence or an acquaintance with his writings. Surely, if the writings of a person are presented for inspection, a witness may speak as certainly respecting them, as he may, by recalling to his recollection writings heretofore seen. 2. The depositions of cashiers of banks were offered, who had never seen the defendant write, and who had no knowledge of his hand-writing, but who had compared the libel in question with other writings proved to be his, and who testified that they were written by the same hand, and that the libel was written in a disguised hand. As to comparison of hands, which was here admitted, that will be examined more fully when the next point shall be considered. Might the cashiers testify, that the hand-writing was disguised 1 Clerks in the general post-office, who had been employed to inspect franks and detect forgeries, were admitted by the court oí king’s bench, to testify, whether a writing was in an imitated or natural character. It was considered a question of art, which might be answered by a person of skill and experience. Cashiers of banks are employed in the inspection and examination of writings. It is, at this day, especially, when forgeries are so common, almost an habitual practice to view signatures and writings of all kinds with a scrutinizing eye ; and thus they acquire a degree of skill which enables them to speak with confidence, and which entitles their testimony to weight. Ar-tizans of all kinds are to be credited, when they speak of the productions of others of the same occupation ; and their skill and dexterity is sometimes surprising to those not conversant with such subjects. I sec no objection to the testimony thus far. • 3. The next and only remaining point is, whether the judge at the circuit was correct in admitting other writings, proved to [69] be genuine writings of the defendant, to go to the jury, for them to compare with the paper in dispute, and thereby to ascertain, whether it was the hand-writing of the defendant. It is not denied, that the general rule found in our elementary writers, is opposed to this decision. Swift, in our own state, and Starkie and Phillips, and many others, concur in declaring such testimony inadmissible. Mr. Day, in a learned note to his edition of Esp. Rep. vol. 4. p. 273. examined all the cases on this subject, and came to the same result. The treatises of Starkie & Phillips have appeared since the note of Mr. Day; and several cases are cited by those writers in favour of the admissibility of this species of evidence. In Abbe v. Daniels, Worcester county, Mass, September term 1811, Parsons, Ch. J. admitted skilful witnesses, who had never seen the defendant write, to swear, that the signature in dispute was not, in their opinion, a natural one, nor written by the same person who made other signatures, which were produced and acknowledged to be the defendant’s. 2 Stark. Ev. 658. note 1. by Metcalf. In Massachusetts and Maine, comparison of hands is always admitted. Homer v. Wallis, 11 Mass. Rep. 309. Hammond’s case, 2 Greenl.33. In New York, it is doubtful whether genuine papers can be delivered to the jury to determine, by comparison, the genuineness of the paper in question. Titford v. Knott, 2 Johns. Ca. 211. In Pennsylvania, such evidence is received in corroboration. McCorkle v. Binns, 5 Binn. Rep. 340. 349. Pennsylvania v. McKee, Addis. Rep. 33. The same evidence has been recognized in South Carolina, where it is offered in aid of other proof. Boman’s admr. v. Plunkett, 2 McCord 518. The only reported case on that subject, in Connecticut, is that of the Slate v. Brunson, 1 Root 307. where this species of evidence was admitted in a criminal case, I am aware, that there have been contradictory decisions on this point, at the circuits; but it has never come before this court till now. Under these circumstances, the court may, without embarrassment, resort to the reason of the rule. It is said by Starkie, that an unfair selection of specimens may be made for the purpose of comparison. 2 Stark. Ev. 656. It is not suggested, that any advantage would thereby be given to one party over the other. The party whose hand-writing is questioned, may be presumed to know more of the sources of proof of his own writing, than the party who is bound to establish it; and it would, therefore, be a singular objection [70] for him to make. And again; the same objection lies against .the introduction of witnesses, who are to testify their knowledge of the hand-writing. In both cases, proof may be expected favourable to the party introducing it ; and it will be always selected with that view. It is again alleged, as a more satisfactory objection, that it might open the door to a great deal of collateral evidence, which might branch out into a very inconvenient length. 2 Stark. Ev. 656. It is believed, that this objection lies with equal force against many other kinds of proof, which is daily admitted. All those questions, which are to be decided by the opinions of witnesses, are of this description. But the great objection, and the only one suggested by the courts, in the adjudged cases, is, the ignorance of the jury on the subject of writings. The jurors, say the courts in Great Britain and elsewhere, cannot read or write; and it certainly would be a great absurdity, that men should be called to compare writings, who are entirely ignorant of letters. If this objection could prevail any where else, it cannot be admitted here. None of this description are ever summoned on the jury in Connecticut. Jurors are selected in each town, by the civil authority and select-men, from the freeholders. The number is from six to forty, according to the population. They are generally among the best informed of their fellow-citizens: and to such men may safely be confided the decision of all questions of fact. It also rarely occurs, that a jury, empan-nelled in our cburts, does not contain some persons well versed in writings. It has been said, and so it is believed, the law is every-where, that a witness who has seen a person write but once or twice, and that perhaps ten or twenty years ago, is to be received; to give to the jury an opinion whether the paper in question be the hand-writing of the party to whom it is ascribed, and yet that writings proved to be genuine may not be shown to the jury to form their opinion of his credibility. If this be indeed so, it is a case without analogy. A witness may be prejudiced ; — the jury are presumed to be impartial. They can decide, by inspection, on the weight to be given to his testimony, and that too, generally, with a good degree of accuracy. The witness describes how the person made his letters, wherein the writing is disguised, and the result of his opinion. Why not permit the jury to see the grounds of his conclusion, by examining those writings from [71] yhich he has derived it. Maps, plates, charts, surveys, plans and models of machines, are constantly given to the jury to form their opinions in cases where they apply ; but jurors are not generally more skilled in mathematics, surveying and mechanism, than in writing. But I forbear. It has always appeared to me a very feeble objection; and I rejoice to see it overruled. The motion ought to be denied. The other Judges were of the same opinion ; some of them remarking, that they had considered the rule as otherwise established, but they were willing thus far to change it. New trial not to be granted.