The Opinion of the Court was delivered by
Treat, J.
Alonzo Pate was indicted at the April term 1845, of the Adams Circuit Court, for the crime of forgery. The indictment contained three counts. The first charged the prisoner with the forgery of a receipt for money in these words: “May 13th 1844 I Hav Ths day Received of Alonzo Pate fourteen Hundred dollars Being paid on a Track of land as witness my Hand and Seal this the 13th of May 1844 George Randall”
James Fawke
The second count charged him with publishing as true and genuine the same forged receipt.
The third count charged him with the forgery of a contract for the conveyance of land, in these words: “South East Quarter of Section 18 in T 1 N. R 8 W of the 3rd P N O R. Know all men By These presents that I Geor Randall do hav This day Bargained and Sold My track of land to Alonzo Pate for the Sum of fourteen Hundred and fifty dollars Balence on said land fifty dollars whitch I do Bind myself to Relinquish my Right and title on the payment of the Ballence of the money as witness my hand And seal Georg Randall” James Fawke
Each of the counts alleged that the act was done with the intention to defraud George Randall.
At the same term the prisoner was arraigned and pleaded not guilty. The jury found him guilty, and fixed the period of his imprisonment in the Penitentiary at nine years. During the trial exceptions were taken to decisions of the Court, in admitting and excluding evidence, and in giving instructions. The prisoner entered a motion for a new trial on the ground of newly discovered testimony, and because the verdict was contrary to the evidence. This motion the Court denied, and a bill of exceptions was taken embodying the whole of the testimony. The Court having passed sentence on the prisoner, he sued out a writ of error to this Court, and obtained a supersedeas thereon.
The errors relied on for the reversal of the judgment are, first, the Court erred in admitting the testimony of Phillips; second, in excluding the testimony of Crawford; third, in giving the instructions asked for by the prosecution; fourilu in qualifying the instructions asked for by the prisoner; fifth, in allowing the jury to separate without the consent of the prisoner; sixth, in permitting the jury to retire from the bar without being in the charge of a sworn officer; and seventh, in not granting anew trial. These errors will be considered in their proper order.
First. Was the testimony of Phillips properly received? A bare reference to the testimony which he gave, and the object for which it was introduced, will clearly show that there was no valid objection to it. Randall, the prosecuting witness, testified that the receipt and contract described in the indictment were never executed by him, and he proceeded to point out instances wherein the style of writing and spelling differed from his own. For the purpose of contradicting him, the prisoner introduced other papers written and signed by Randall, which corresponded in these particulars with the documents alleged to be forged. The prosecution then had the undoubted right to rebut this testimony and'sustain Randall. A legitimate way of doing it was by showing that the papers introduced by the prisoner, and which by the evidence had been traced to his possession previous to the trial, were originally written, as stated, by Randall, but had since been made to resemble the forged writings by alterations and erasures. Phillips was placed on the stand for the purpose of examining them critically, and then expressing his opinion to the jury, whether there had been such erasures or alterations. His conclusion was, that erasures hadbeen made in the particular instance pointed out by Randall. It had been the business of the witness for many years, as an officer of a bank, to examine papers with the view of detecting alterations and erasures, and ascertaining spurious from genuine writings and signatures. He was, therefore, a~person skilled in the matters concerning which he was called to give testimony, and as such was competent to express his opinion to the jury. It was insisted on the argument, that the question whether there had been erasures was one tobe determined by the jury on an inspection of the papers, without the aid of other testimony. It can hardly be supposed that the jurors were as competent to form a correct opinion on this subject ás a witness peculiarly qualified by years of practical experience. Erasures might be easily discovered and pointed out by such a witness, which would otherwise escape the observation of men unaccustomed to detecting them. The Court was right in allowing the minds of the jury to be enlightened by the opinion of a witness possessing this superior knowledge.
Second. Was the testimony of the witness, Crawford, properly excluded? Crawford was called by the prisoner, and after testifying respecting other matters, stated that he had never seen the prisoner write before the difficulty arose between him and Randall. The counsel for the prisoner then asked the witness to state from his knowledge of the prisoner’s hand writing, whether either the receipt or contract alleged to be forged was written by him. The prosecution objected to the question and the Court sustained the objection. The general rule on the subject of the proof of hand writing is well understood, and will be briefly stated. The proof is not to be made by the comparison of hands, but by the production of witnesses, who have acquired a knowledge of the general character of the hand writing of the party. The modes of acquiring this knowledge are, either by having seen him write, or by having seen letters or other documents which the party has, in the course of business, recognized or admitted to be his own. A witness who has thus become acquainted with the hand writing of the party, is allowed to examine the writing in question and declare his belief, founded on his previous knowledge, concerning its genuineness. In this case, the witness did not come within the rule. No sufficient foundation was laid for the introduction of his opinion. It did not appear that he had such a knowledge of the prisoner’s hand writing as would authorize him to speak concerning the genuineness of the writings in question. He did not state that he was acquainted with his hand writing. He had not seen him write, unless that is to be inferred from the statement, that he had never seen him write before the happening of a particular contingency. A witness ought first to be asked if he is acquainted with the hand writing of the party. If he answers in the affirmative, he is then to be asked, how he obtained the knowledge. It is only when he professes to have this knowledge, acquired from legitimate sources, that he is permitted to express an opinion. He may have seen the party write and still be unable to distinguish his hand writing.
Third. Did the Court err in giving the instructions asked for by the prosecution? These instructions contain correct principles of the law as laid down in the elementary works on Evidence. This is not denied by the counsel for the prisoner, but they insist that the instructions were mere abstract propositions of law, having no applicability to the facts of the case, and as such should have been withheld.
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The Opinion of the Court was delivered by
Treat, J.
Alonzo Pate was indicted at the April term 1845, of the Adams Circuit Court, for the crime of forgery. The indictment contained three counts. The first charged the prisoner with the forgery of a receipt for money in these words: “May 13th 1844 I Hav Ths day Received of Alonzo Pate fourteen Hundred dollars Being paid on a Track of land as witness my Hand and Seal this the 13th of May 1844 George Randall”
James Fawke
The second count charged him with publishing as true and genuine the same forged receipt.
The third count charged him with the forgery of a contract for the conveyance of land, in these words: “South East Quarter of Section 18 in T 1 N. R 8 W of the 3rd P N O R. Know all men By These presents that I Geor Randall do hav This day Bargained and Sold My track of land to Alonzo Pate for the Sum of fourteen Hundred and fifty dollars Balence on said land fifty dollars whitch I do Bind myself to Relinquish my Right and title on the payment of the Ballence of the money as witness my hand And seal Georg Randall” James Fawke
Each of the counts alleged that the act was done with the intention to defraud George Randall.
At the same term the prisoner was arraigned and pleaded not guilty. The jury found him guilty, and fixed the period of his imprisonment in the Penitentiary at nine years. During the trial exceptions were taken to decisions of the Court, in admitting and excluding evidence, and in giving instructions. The prisoner entered a motion for a new trial on the ground of newly discovered testimony, and because the verdict was contrary to the evidence. This motion the Court denied, and a bill of exceptions was taken embodying the whole of the testimony. The Court having passed sentence on the prisoner, he sued out a writ of error to this Court, and obtained a supersedeas thereon.
The errors relied on for the reversal of the judgment are, first, the Court erred in admitting the testimony of Phillips; second, in excluding the testimony of Crawford; third, in giving the instructions asked for by the prosecution; fourilu in qualifying the instructions asked for by the prisoner; fifth, in allowing the jury to separate without the consent of the prisoner; sixth, in permitting the jury to retire from the bar without being in the charge of a sworn officer; and seventh, in not granting anew trial. These errors will be considered in their proper order.
First. Was the testimony of Phillips properly received? A bare reference to the testimony which he gave, and the object for which it was introduced, will clearly show that there was no valid objection to it. Randall, the prosecuting witness, testified that the receipt and contract described in the indictment were never executed by him, and he proceeded to point out instances wherein the style of writing and spelling differed from his own. For the purpose of contradicting him, the prisoner introduced other papers written and signed by Randall, which corresponded in these particulars with the documents alleged to be forged. The prosecution then had the undoubted right to rebut this testimony and'sustain Randall. A legitimate way of doing it was by showing that the papers introduced by the prisoner, and which by the evidence had been traced to his possession previous to the trial, were originally written, as stated, by Randall, but had since been made to resemble the forged writings by alterations and erasures. Phillips was placed on the stand for the purpose of examining them critically, and then expressing his opinion to the jury, whether there had been such erasures or alterations. His conclusion was, that erasures hadbeen made in the particular instance pointed out by Randall. It had been the business of the witness for many years, as an officer of a bank, to examine papers with the view of detecting alterations and erasures, and ascertaining spurious from genuine writings and signatures. He was, therefore, a~person skilled in the matters concerning which he was called to give testimony, and as such was competent to express his opinion to the jury. It was insisted on the argument, that the question whether there had been erasures was one tobe determined by the jury on an inspection of the papers, without the aid of other testimony. It can hardly be supposed that the jurors were as competent to form a correct opinion on this subject ás a witness peculiarly qualified by years of practical experience. Erasures might be easily discovered and pointed out by such a witness, which would otherwise escape the observation of men unaccustomed to detecting them. The Court was right in allowing the minds of the jury to be enlightened by the opinion of a witness possessing this superior knowledge.
Second. Was the testimony of the witness, Crawford, properly excluded? Crawford was called by the prisoner, and after testifying respecting other matters, stated that he had never seen the prisoner write before the difficulty arose between him and Randall. The counsel for the prisoner then asked the witness to state from his knowledge of the prisoner’s hand writing, whether either the receipt or contract alleged to be forged was written by him. The prosecution objected to the question and the Court sustained the objection. The general rule on the subject of the proof of hand writing is well understood, and will be briefly stated. The proof is not to be made by the comparison of hands, but by the production of witnesses, who have acquired a knowledge of the general character of the hand writing of the party. The modes of acquiring this knowledge are, either by having seen him write, or by having seen letters or other documents which the party has, in the course of business, recognized or admitted to be his own. A witness who has thus become acquainted with the hand writing of the party, is allowed to examine the writing in question and declare his belief, founded on his previous knowledge, concerning its genuineness. In this case, the witness did not come within the rule. No sufficient foundation was laid for the introduction of his opinion. It did not appear that he had such a knowledge of the prisoner’s hand writing as would authorize him to speak concerning the genuineness of the writings in question. He did not state that he was acquainted with his hand writing. He had not seen him write, unless that is to be inferred from the statement, that he had never seen him write before the happening of a particular contingency. A witness ought first to be asked if he is acquainted with the hand writing of the party. If he answers in the affirmative, he is then to be asked, how he obtained the knowledge. It is only when he professes to have this knowledge, acquired from legitimate sources, that he is permitted to express an opinion. He may have seen the party write and still be unable to distinguish his hand writing.
Third. Did the Court err in giving the instructions asked for by the prosecution? These instructions contain correct principles of the law as laid down in the elementary works on Evidence. This is not denied by the counsel for the prisoner, but they insist that the instructions were mere abstract propositions of law, having no applicability to the facts of the case, and as such should have been withheld. It has often been decided that Courts are not bound to instruct the jury on abstract questions of law, which have no direct bearing on the facts of the case before them; but no case has gone the length of holding that the giving of such instructions is error. It is only when the Court in declaring the law states it erroneously, that its opinion can be revised; and then if it appear that the instructions could have had any influence on the jury, their verdict will be set aside.
Fourth. Did the Court err in giving the qualification to the instructions called for on the part of the prisoner? It appears from the record, that the Court gave all of the instructions demanded by the prisoner, with the single explanation as to the meaning of a reasonable doubt, as follows: “That there should be more than a bare probability of the defendant’s innocence; that they should have a reasonable doubt of his guilt, growing out of the unsatisfactory nature of the evidence; such a doubt as would induce a reasonable man to say, I am not satisfied that the defendant is guilty.” This instruction, as it reads, is not technically correct, but by inserting the word “possibility” in the place of “probability,” it would not be obnoxious to any just exception. It is most likely that the Court in giving the explanation made use of the former word, and that in copying the instructions into the bill of exceptions, the latter word was by mistake inserted in lieu of it. Rut proceeding on the ground that the instruction is correctly copied, it is very evident from the whole record that it could not have had the slightest influence on the jury prejudicial to the prisoner. The instructions given, as well at the instance of the prosecution, as of the prisoner, assert in emphatic terms the familiar doctrine of the law, that the jury are bound to acquit the defendant if they entertain any reasonable doubt of his guilt. The explanation itself, when all taken together, clearly indicates that the Court fully recognized this principle, and did not intend to contravene it;' and such we entertain no doubt was the understanding of the jury.
The fifth and sixth assignments of error present questions of the same character, and both will be disposed of together. On these points, it appears from the record that the trial continued through several days, and that the jury were permitted to disperse on each adjournment of the Court; but the record is silent as to the fact whether the separation was with the consent of the prisoner, and it fails to show that the jury were in charge of a sworn officer when they retired to consider of their verdict. These questions arose in the case of McKinney v. The People, 2 Gilm. 540, and we there held, that the record need not show what disposition was made of the jury during the progress of the trial, and when they retired to agree on their verdict; that the presumption was that the Court performed its duty in such respects, and that if the jury were allowed to disperse without the consent of the prisoner, or to retire from the bar without being in the charge of a sworn officer, it was incumbent on the prisoner, if he objected to such irregularities, to introduce them into the record by a bill of exceptions. The presumption from this record is, that the prisoner consented to the separation of the jury, and that the Court performed its duty by requiring a sworn officer to accompany the jury in their retirement,
Seventh. Ought the Court to have granted a new trial? Prior to the passage of the Act hereafter mentioned, this Court repeatedly decided that applications for the continuance of causes, and for new trials, were matters addressed to the sound discretion of the Circuit Courts, and that their decisions thereon could not be assigned for error. Vickers v. Hill, 1 Scam. 207; Wickersham v. The People, Ib. 128, and the numerous cases refered to in a note to that case. The second section of the Act of the 21st of July, 1837, and which is incorporated in the Revised Statutes, provided that the decisions of the Circuit Courts in overruling motions for new trials, and for continuances, might be assigned for error. Acts of 1837, 109; Rev. Stat. 416. It will be seen, then, that applications for continuances and for new trials are placed on the same footing, both by the adjudications of this Court, and the enactments of the Legislature. This Court during the present term, in the case of Baxter v. The People, on the direct question whether the Circuit Court had erred in refusing the defendant a continuance in a criminal case, deliberately decided that the foregoing provision of the statute was solely applicable to civil causes, and had no relation whatever to criminal cases. The reasons for that conclusion are there given, and need not here be recapitulated. That decision is necessarily conclusive of the question presented by this assignment of error. In criminal cases, therefore, motions for new trials still rest entirely in the discretion of the Circuit Courts, where they are made, and the propriety of their decisions in refusing them cannot be reviewed in this Court.
But if the reverse was the rule, this case would not justify the interposition of the Court. The evidence exhibits a strange but flagrant ease of forgery, to which the prisoner did not scruple to superadd the crime of perjury; the object of the one, to wrest from an honest citizen the whole of his estate; the design of the other, to visit on the head of an innocent man the ignominy and punishment so fully deserved by himself. The jury returned a righteous verdict, and the Court very properly exercised its discretion in refusing to disturb it.
The judgment of the Circuit Court is affirmed with costs.
A petition for a re-hearing was filed, and denied. One of the points made was, that the Court misapprehended the testimony of Crawford. In the hill of exceptions, as embodied in the transcript of the record,- a word had been omitted, and was supplied by consent of counsel, and interlined with a pencil. The word was dimly written, and escaped the attention of the Judge who drew up the Opinion. The omission occurred in the following sentence, to wit: “i have seen Pate write. I never saw Pate write before his diificulty with Bandall.” The word italicised was- omitted. The 'Court, however, in the verbal opinion announced, stated that this fact would not change the decision of the case.