Marshall v. Thomas

12 Ohio C.C. (n.s.) 353

• Court: Muskingum Circuit Court
• Decided: October 15, 1909
• Status: Published

Opinion

This action is brought.by the plaintiff in error as administrator of the estate of Sarah E. TIolden, deceased, upon two promissory notes,- with warrants of attorney attached, both,-, bearing date September 21, 1898, due one year after date, copies of which with warrant of attorney are attached to the original petition. -

The defendant in error answers, setting up-two defeuses-.The first defense, after making certain admissions, denies each and every allegation contained in the first cause of .action; and further denies that he ever executed and delivered to said Sarah IT Holden or to any one for her the alleged promissory notes set forth.in the petition; and„as, a second, defense, to each of said notes'pi cads want of consideration.

The files or transcript do not show there was any reply to this answer of the defendant, hut the case was tried to a jury, and the evidence was received hearing upon the issues made in the case as if a reply were filed, so Ave assume that there was a reply, and the issues property joined between these parties.

The.- cause Avas submitted to a jury and -resulted in a verdict, for the' defendant. -Motion for a 'neAv trial Avas filed-and overruled, and error is prosecuted to this court to rev'erse the 'judgment of the court beloAAq and various grounds of'érror' aré assigned in tlfe petition in error for a reversal of the-judgment:

Without setting forth the numerous errors complained' of in the’/petition in error, the principal ones Avhicli we will consider are, errors, in the admission of evidence on, behalf of the, defendant; error in the court’s refusing to alloAV all the exhibits that had been admiteed by the court below as standards of the genuine signature of the defendant in error to'be taken'by the jtiry to their room.for. deliberation; that the verdict of.the jury is against the weight of the evidence and is not .-supported by., the: evidence, and is contrary to law- The main ---contention in the'case'centers upon the question as 'to whether or'liotthe court eorréd in its order refusing' to áíloAv all the’ exhibits.’ that had been admitted by the court beloxv as standards of the genuine signature of the defendant to be taken by .the jury to Their- room AA^hen they -retired to deliberate upon their verdict. We will consider this question first:

A large number, fifty or more of signatures and writings, admitted to be the genuine handwriting and signature of the defendant, Avere introduced in evidence and used as- standards of comparison Avith the- alleged signatures to the 'notes- set forth in the -petition.

At the 'trial, the court did not limit in any way the number of standard signatures that could or should be used for the purpose of comparison. These standards were all used'on the'trial in,the' examination of expert witnesses as standards 'of-'comparison with the tÁA’O notes iif'spit. On the conclusion of the charge, the court ordered that only two of the standards should go with the jury in its deliberation. Afterwards, the court permitted two other standards to be selected for that purpose, and such selections were made, and these exhibits with the notes in suit were taken by the jury to its room during its deliberation.

The' plaintiff in error took exceptions to the' order of the court, limiting the number of exhibits' or standards that should thus be taken by the jury.

The general rule as to what papers may be taken by thé jury rests in the descretion of the court;, and it is only when there has been an abuse of this discretion, the judgment will be reversed. ’ ’

In considering this question, the nature of the issue involved is important, namely: Where the genuineness of the handwriting of a party is challenged, the jury have the right to make comparisons between the standards and the writing in dispute. We have no doubt that the court may limit in a reasonable degree the number of genuine signatures or writings to be used as standards of comparison; and if the court had so limited the number in this case it would come within the sound discretion of the court; but after the court admits such standards or exhibits in evidence, it has no right to withdraw any portion of theni'from the jury or to refuse to' permit it to have all the standards so admitted to be used in comparison with the disputed signature.

When standards are thus admitted, if the jury takes any part of them it should take all, and when the court orders that only a part can be taken it is an abiise of discretion prejudicial to the parties concerned. It may be illustrated in this way: The court on the trial of any issue may reasonably limit the number of witnesses to be used upon any one issue involved in the suit, bid after the court has permitted evidence to go to the jury on any such issue either by the testimony of witnesses or by other evidence, it would have.no right to say to the jury or direct' that certain testimony or a certain number of witnesses only are to be used in its consideration of such issue. It is not necessary to cite authorities as to the right of the jury upon a question of handwriting, to make comparisons between the disputed handwriting and that which is admitted to be the genuine handwriting; of.the alleged.maker of the disputed signatures; and the-jury may decide by comparison the issue between the parties.

Returning to the .question of the court refusing to permit the jury to have all the exhibits that had been received .in evidence as standards, of., comparison with the signature in controversy, it .was held in the case of Rainford v. People, 61 Ill., p. 365, to be error for the court to allow the jury to take out a part of the-evidence without taking all. Applying this principle -here, the cou.rt was in error when he directed that only a certain number of exhibits that had been introduced in evidence as the genuine handwriting or signature of the defendant in error should be taken by the jury to its room. The jury examining and comparing the signatures of only a part of the standards with the disputed signatures would reason with one another as to why they should have a part of the admitted signatures and the others- were excluded from their consideration. Their minds would naturally be impressed by the rejection, and unconsciously form conclusions from the refusal to permit them to bave all of the exhibits. .Little do we know the secret and insiduous manner by which impressions are produced on the mind,, or how slight the operating cause may ho. . : • . , .

We think, a sound discriminating discretion was not exercised in permitting only a part of the admitted standards to he taken by the jury when they retired to consider, weigh and determine upon the testimony and evidence in the case.

In refusing to allow the jury to have all the admitted standards there was prejudicial error in this ease, unless the other contention of the defendant in error was established, namely, that the notes were without consideration and were never in fact delivered to the payee named therein.

1st. Were the notes without consideration?

2d. Were the notes delivered to the payee?

The form of the notes, stipulating that they were given for value received, nothing else appearing, if the notes.were genuine, would.be prima faicie evidence of consideration.

Delivery, is in general presumed from possession of a bill or note. So,, where a note was found .-among-the papers- of a deceased payee, its proper delivery is to be presumed (Holiday v. Lewis, 4 Hun., p. 478). But if a note were found among papers óf a deceased person who is a stranger to the note, and the representative of the deceased person makes no claim to it, no delivery to the payee will be presumed, and delivery actual or constructive must be shown. Blanchard v. Sheldon, 43 Vt., p. 512.

The evidence in this case shows that these notes were found among the papers of the deceased, Sarah E. Holden. Being so found them proper delivery is to be presumed until the contrary is- shown.

It is also urged in argument by' the plaintiff in error, that there was error in permitting the expert witness, George’ W. Wood, to give his reasons.for opinion he had formed as to the signatures in question on his examination in chief, the contention being,'that his reasons for his opinion or judgment should be tested by cross-examination.

Wé do not agree with this contention; yet, we think it is proper and perhaps necessai’y in this ease for the court to say something as to the examination in chief of an expert witness on handwriting, before he can be permitted to give ah opinion, where his only knowledge is gained, from a comparison of ácíiiiitted genuine writing with the writing of the disputed instrument; or, in other words-, where the knowledge of the expert is gained from a comparison of admitted genuine writing with the writing in dispute. '''

In the case of Koons v. The State, 36 Ohio St., p. 195, the court laid down this formula, -as being requisite for the qualification of an expert witness to give an opinion: “It must appear before such opinion is called for, that the witness has formed, or is then able to form an opinion upon the matter in question.”

With the contention of the plaintiff in error, that the court erred in permitting the expert Wood in his examination in chief to give his reasons for the opinion or judgment he had formed we do not agree. In Kieth and wife v. Lothrop, 10 Cushing, p. 453, the court say at page 457 that “the witness Smith who was called as an expert was rightly allowed to.give his reasons for the opinion that he expressed.” This point was adjudged in Commonwealth v. Webster, 5 Cush., p. 301; and in Collier v. Simpson, 5 Car. & P., p. 73, Tindel, C. J., ruled, "that counsel might ask a witness Avho Avas called to testify as an expert, ‘his judgment and the grounds of it. ’ The value of an- opinion may be increased or diminished in the estimate of the jni'y by reasons given for it.”

"It is proper on the examination of an expert, even on his examination in chief, to require him to state the reasons'for his opinion, so that the jury will be enabled to estimate the value of his testimony.” People v. Shattuck, 109 Cal., p. 673.

In examining the testimony of the expert Wood, Ave think some parts of his testimony are objectionable, on the ground that his opinion is formed or based upon argumentative statements, mere inferences and speculation. When an opinion is speculative and theoretical only it should not be received; such statements are not Avithin the domain of expert testimony.

An expert can not testify that a forger in imitating and disguising handwriting is more particular at the beginning than at the close of the effort; he should be confined to matters apparent on the face of the writing, he may testify to the difference in the letters or words of the -writing or signature in dispute, similar characteristics or other matters as they may appear to him on the face of the writing, as for example, simulation, naturalness and the like, and may in a proper case give his opinion whether a given Avriting is a genuine or a feigned or forged signature. By comparison is meant the collation of writings in juxtaposition for the purpose of ascertaining by inspection if they were AATitten by the same person. Persons of experience and skill though previously unacquainted with the handAvriting in question may be allowed to depose as to appearances perceived by them, as to the resemblance or difference in ihe formation and appearance of the different letters or words, or even in the general appearance of different portions of the writing. Handwriting is an art concerning AAhieh the value of an opinion is susceptible of demonstration. The value of an opinion of a handAvriting expert must depend upon the clearness with AAhieh the expert demonstrates its correctness. That demonstration Avould naturally consist in the indication of similar characteristics or lack of similar characteristics between the disputed’writing' and the standards, and the valúe of the opiúi'on will' largely depend upon the number pf 'those' characteristics which appear, or .'are wanting. Thus, comparison is rated after the fashion of circumstantial evidence, depending for. strength upon the number, prominence and' consistency of the links in the chain. But "the rule, as to circumstantial evidence, will not permit one inference. to depend upon another inference in establishing the question in issue. Therefore, the expert, should be confined to matters apparent on the face of the writing, and not' by argument or inference draw conclusions upon matters not appearing upon the face of the writing.

As an example' of the violation of these principles- in the examination of the witness Wood, we will, give a single example, reading from the bill of exceptions, at the bottom of page 84:

.“Now, as a matter of comparing the handwriting in the two questioned signatures with the handwriting in the standards, the two exhibits numbered 49 and 50, as well as all of the other standards in evidence, there is just one logical conclusion to be arrived at, and that is, that whoever wrote these two questioned signatures held the pen in an entirely different way from the manner in which the pen was held in writing any of the standards in evidence. Now, as I have stated before, these two questioned signatures were unquestionably written with the pen held sidewise, pretty much after the fashion in which a stub pen is ordinarily held by writers who employ stub pens. Now that is not the case, nor was it the case in writing any of the standards. John J. Thomas, in writing his signatures as portrayed distinctly in all of his signature writing in evidence as standards, held his pep as writers, ordinarily hold their pen, with the pen facing the writer. Now that is distinctly portrayed by the shading in the downward strokes; the heavy strokes of John J. Thomas’ signature writing are made with the downward movement of the pen. In some of his signatures-, in some of the ..standard signatures in evidence, the heavy strokes' are much •heavier in some instances than the others. In many instances, they are. quite as heavy as some of the heavy strokes in these questioned signatures, but they are made in a different direction; they are made with a downward motion of the pen, or at any event they are not with the side motion of the pen, and therein is portrayed, in comparing the questioned signatures with the admitted signatures of John J. Thomas, an entirely different habit of holding the pen, and it portrays two extremes. There are just two ways in which a pen can be held, to extreme ways— two extremes — one with the pen facing sidewise, and the other with the pen facing the writer. Of course, there are different modifications, from one extreme to the other, but here we have, jn a comparison of the questioned signatures with the standard signatures of John J. Thomas, those two extremes.”

This -is only one illustration of the method of the witness arguing in support of his opinion without stating facts that are apparent from an examination of the writings themselves. It presents no question of science and involves no rule not subject to as many variations as there might be efforts at simulating writing. The care of one man is not evidence of the care which may be exercised by another in an effort to commit a forgery, any more than is the skill of one man in executing the imitation or disguise, evidence of the skill- of another. An expert can not testify that a forger in imitating and disguising handwriting is more particular at the beginning than at the close of the effort. These principles are well recognized by authority: Encyclopedia of Evidence, Volume 6, page 384, subdivision 3, and authorities there cited, and the Gordon case, found in 50 N. J. Equity, p. 397; s. c. 26 Atl., p. 264-268.

We appreciate the difficulty of establishing a definite rule for the examination of ah expert witness, to separate that which is argumentative, theoretical and speculative from that which is proper illustration, in pointing out the difference in the letter or words of the writings in the way of demonstration. We realize that the examination must be left largely to the discriminating discretion of the trial judge Avhen the testimony is being given..

Eliminating from the testimony of the expert witness Wood, that which would come under this rule of exclusion, we think the verdict of the jury is manifestly against the weight of the evidence, in finding that the signatures of John J. Thomas to Exhibits “A” and “B” are not genuine; on the contrary, the weight of t-hp testimony is manifestly in favor of their being genuine. The witnesses who testified to the. genuineness of these signatures were bank officials, men of long experienc in examination by comparison of handwritings, and the decided weight of the testimony is in favor of the genuineness of these two disputed signatures, and the jury has so disregarded the weight of the evidence in their verdict that'the court is forced to the conclusion that their judgment must have been influenced largely by the incompetent evidence given by this expert Wood in his argumentative and speculative way of supporting his opinion that the signatures of “A.” and “B” were not genuine.

We have examined the charge of the court and find no error in the charge, or in the refusal to charge as requested by the plaintiff in error, but for the reasons stated, the judgment is reversed with costs, and remanded to the common pleas for further trial and proceedings according to law.

Exceptions noted.