Gooding v. . Pope

140 S.E. 21, 194 N.C. 403, 1927 N.C. LEXIS 113

• Court: Supreme Court of North Carolina
• Decided: October 26, 1927
• Status: Published

Opinion

Stacy, O. J.,

after stating tbe ease: Was it error for tbe court, after tbe jury bad retired to make up its verdict, to send to tbe jury room, on request of tbe jury and over objection of counsel for defendants, tbe papers offered in evidence by tbe defendants, together with tbe magnifying glass used on tbe trial? We think not under tbe facts of tbe present case.

Tbe practice at common law was against allowing tbe jury to examine tbe papers introduced in evidence, either during tbe trial or afterwards in tbe jury room. Newton v. Newton, 182 N. C., 54; Tunstall v. Cobb, 109 N. C., 321; Outlaw v. Hurdle, 46 N. C., 150. And tbis was tbe law of North Carolina prior to tbe passage of chapter 52, Public Laws 1913, now C. S., 1784, which is as follows:

“In all trials in tbis State, when it may otherwise be competent and relevant to compare handwritings, a comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine, shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.”

Following the enactment of this statute, it was said in Newton v. Newton, supra, that the admission of testimony as to the genuineness of a writing by comparison of handwriting is on the same basis as the declarations of agents. The court determines whether there is prima facie evidence of agency or of the genuineness of a writing or writings, admitted as a basis of comparison, and then the testimony of the witness and the writings themselves are submitted to the jury. This, however, does not necessarily mean that the jury shall take the writings into the jury room which, according to numerous decisions in other jurisdictions, is a matter resting in the sound discretion of the trial court. Hopkins v. State, 9 Okla. Crim., 104, reported in Ann. Cas., 1915 B., 736, with valuable note beginning on page 742; 16 R. G. L., 301. The use of a magnifying glass, with permission of the court, is also upheld in a number of cases. Alexander v. Blackburn, 178 Ind., 66; Note, Ann. Cas., 1915 B, p. 1092.

“Why a jury should not be allowed the use of means to aid them in the examination and comparison of handwriting submitted to them to be examined and compared, which have been found by the experience of bankers and business men of the highest utility for such purpose, we are unable to understand. There is no more mystery in such a glass than in ordinary spectacles in daily use. An unlearned man, other things being equal, can see through such glasses quite as well as the most learned.” Kannon v. Galloway, 2 Baxt. (Tenn.), 230.

Without making definite decision on the subject or undertaking to lay down a rule to be followed generally, it is sufficient to say that, in the instant case, no possible harm has come to the defendants, as the jury was allowed to examine only the papers offered in evidence by the defendants, for the genuineness of which they vouched. In no event could the action of the court be held prejudicial to appellants.

No error.