State v. Hastings

53 N.H. 452

• Court: Supreme Court of New Hampshire
• Decided: June 15, 1873
• Status: Published

Opinion

Sargent, C. J.

The first exception is not well taken. Where the same section of a statute makes two or more distinct acts connected with the same transaction indictable, each one of which may be considered as representing a stage in the same offence, they may usually be coupled together, not only in the same indictment, but in the same count. 1 Whart. Am. Cr. Law (6th ed.) sec. 390; 2 id., sec. 1466. A case directly in point is State v. Morton, 27 Vt. 310. So, in Massachusetts, in an indictment on Rev. Stats., ch. 58, sec. 2, wherein the setting up or promoting of any of the exhibitions therein named, without license therefor, is prohibited, it is not duplicity to allege that defendant “did set up and promote” such an exhibition. Commonwealth v. Twichell, 4 Cush. 74.

So, a neglect by supervisors of roads, both to open and to repair a highway, may be charged in the same count in an indictment against them. Edge v. Commonwealth, 7 Barr 275. So, under the statute forbidding any one to obstruct or resist process, the indictment charged that respondent did obstruct and resist. Held good. Slickee v. State, 13 Ark. (8 Eng.) 397. So, in this state, under a statute providing that “no person shall make any brawls or tumults in any street,” etc., a complaint that charged respondent with unlawfully making, at said Manchester, on a certain street, “ a great noise, brawl, and tumult' upon motion to quash, held that there was no duplicity. State v. F kins, 42 N. H. 464;—and, to the same point, see Stoughton v. Sto Ohio St. 562, and Mackey v. State, 3 Ohio St. 363, overruling J v. State, 1 Ohio St. 185. But the offence in such cases must i' charged in the disjunctive in the indictment, as it is in the statu Chitty’s Crim. Law *194.

The second exception must also be overruled. If the charge in this case were for larceny of goods, the description of the goods as belonging to John A. Harris would not be sustained by proof that they were the goods of Harris & Co., of which firm John A. Harris was a member ; because, in that case, the ownership of the goods is an important part of the description of the offence, since a conviction for stealing the goods of A B would be no bar to another indictment or prosecution for stealing the goods of the firm of A B & C D. Com. v. Trimmer, 1 Mass. 476; State v. McCoy, 14 N. H. 364; 2 Whart. Am. Cr. Law, secs. 1820, 1822, 1828, 1833, and cases cited. But in forgery, the offence consists in falsely making and altering a certain written instrument which is set forth and particularly described in the indictment. This must be done with a fraudulent intent; but it may be with intent to defraud the man purporting to be the signer or maker, but oftener some other person upon whom the paper is passed as true, and oftener still it may be with the general fraudulent intent to cheat everybody upon whom the forger may be able to impose; and if the fraudulent intent exist, that is enough, whether any particular person is intended to be defrauded or not.

A forged check was drawn on Worcester old bank, but was presented by the prisoner to Rufford’s bank at Southbridge, and refused ; and the prisoner was indicted for forging and uttering the check, with intent to defraud the Messrs. Rufford. It was objected that, as it was not drawn on them, it could not defraud them; but Bosanquet, J., held that, as it was presented at their bank for payment, it was evidence of an intent to defraud them, and that the indictment was sufficient ; and that, too, even though the supposed drawer never kept any deposit in Rufford’s bank, so there was no probability of their paying the check even if it had been genuine. Rex v. Crowther, 5 Car. & P. 316.

Our statute only_ makes it necessary that the paper be forged “ with intent that any person may be defrauded.” Gen. Stats., ch. 258, sec. 1. Under a similar statute in New York—People v. Curling, 1 Johns. 320—the prisoner was charged with forging a check on the Manhattan Company, signed “ Daniel Ludlow & Co.” There were several counts in the indictment, and it was shown that the firm of Daniel Ludlow & Co. consisted of three partners ; and one count in the indictment, only, charged an intent to defraud Daniel Ludlow, who was one of the three. That case would be like the one before us. In considering the motion in arrest of judgment, the court said that it was not necessary to state an intention to defraud every individual of the company; the omission, therefore, of the name of one of the partners in one count, and of two of them in another, is not fatal; and that, though an intention may have existed to defraud every member of society through whose hands the check passed, nothing more was required than that any one person thus intended to be defrauded should be designated. “ An acquittal, on such an indictment, will always be a bar to another prosecution for the same forgery, though it may be laid with intent to defraud some other person. This is a reasonable course, and safe for the prisoner.”

So, in Stoughton v. State, 2 Ohio 562, it is held that an averment of an intent to defraud one individual is sustained by proof of an intent to defraud a body or firm of which that individual was a member; that an intent to defraud a firm necessarily included an intent to defraud -each member of it; and see 2 Whart. Am. Cr. Law, secs. 1456, 1459.

Nor can the third exception be sustained ; for, although Mr. Dodge had never seen the respondent write a wo.rd or sentence so that he could swear to it, yet he had seen her writing, as he supposed, with pencil and paper, and he had read a dozen or more letters purporting to be hers, and to be signed by her name, some of which she had handed him, and one of which she had given him when they were in the same room, with no others present, requesting him to forward them by due course of mail, and all of which lie had forwarded according to directions, and had heard nothing of them since; that he believed she wrote them, but could not swear to it, and had had no communication with respondent concerning them since. Greenleaf says he must have acted on these letters as his (the writer’s), the party having known and acquiesced in such acts, founded upon their supposed genuineness, or by such adoption of them into the ordinary business transactions of life as induces a reasonable presumption of their being his own handwriting.” 1 Greenl. Ev., sec. 577.

The handwriting of a party may be proved in various ways, and one way is by the acknowledgment or admission of tlie party, and in most states in this country by a comparison with other writings. 2 Whart. Am. Cr. Law, sec. 1463. In what way could the respondent have adopted these letters as hers more fully than she did ? Her admission that she wrote them would clearly have made them competent,» whether made at the time she gave them to the jailer or afterwards. But what stronger admission could she have made, than she did in this case by her acts, that these letters were hers ? “ The admissibility of the evidence must depend upon whether there is good reason to believe that the specimens from which the witness has derived his knowledge were written by the supposed writer of the paper in question. 1 Phillips Ev. (C. & H.) 486;—see, also, notes 914 and 915, vol. 3, pp. 1324, 1326. Johnson v. Divine, 19 Johns. R. 134, where it was held that the payment of notes purporting to be signed by a party, is, unexplained, a full admission that he had made and subscribed the notes. Why, then, were not the respondent’s acts in this case a sufficient admission that she wrote and signed the letters which she sent forth as hers, and which purported to be signed by her ? We think, upon the authorities, that this witness was properly allowed to testify, from his knowledge of the respondent’s handwriting, that the signature in question was her signature. But the more proper course in all such cases would be to submit the whole question to the jury, and, if they find that these letters were written by the respondent, then they should consider and weigh the opinion of the witness; but, if not, then the testimony of the witness should be laid out of the case. There is no more propriety, really, in the courts passing upon these preliminary questions of fact, than there would be in their settling the real questions in issue.

Upon the fourth question raised in the case, — as to the comparison of handwriting by experts, and by the jury, — there is a motion before the judge, who presided at the trial, to amend the case so as to state the testimony more fully : we will therefore consider the general question somewhat. In Myers v. Toscan, 3 N. H. 47, it i's held that it cannot be left to the jury to determine the genuineness of a signature to a paper, merely by comparing it with other signatures proved to be genuine, but that after witnesses acquainted with the handwriting in question have testified, other signatures proved to be genuine may be submitted to the jury to corroborate or weaken their testimony. In Bowman v. Sanborn, 25 N. H. 110, it is said, where there are other signatures of the person already in evidence in the case, a comparison may be made between the signatures admitted to be genuine, and the one in question, without any previous proof as to handwriting. Reed v. Spaulding, 42 N. H. 111, 121, 122, follows Bowman v. Sanborn, that it is only between signatures admitted to be genuine, and which are already in evidence in the case, and the one in question, that, a comparison can be made by experts or the jury, and that this may be done without any other preliminary evidence, thus contradicting Myers v. Toscan; while the second case, of Reed v. Spaulding, decided in Sullivan Co., Dec. Law Term, 1862, and not reported, held that the standards of comparison might be proved to be genuine as well as to be admitted to be so ; and that they might be introduced anew for the purposes of the comparison, as well as to use those already in the case for other purposes. State v. Shinborn, 46 N. H. 497, follows Bowman v. Sanborn, the comparison may be made without waiting for any other evidence derived from a knowledge of the handwriting. Lyon v. Lyman, 9 Conn. 54; Moody v. Bowell, 17 Pick. 490.

While the rule has thus been unsettled in this state, and in many other states, the English courts have for centuries denied the admissibility of such testimony altogether, for various reasons, the principal of which for a long time was, that their juries were unlettered, and, as they held, incompetent to institute such comparisons ; but at length so urgent seemed the necessity, that parliament took the matter in hand, in 1854, and passed what is known as “The Common Law Procedure Act,” 17 & 18 Victoria, ch. 125, which provides that “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.” 2 Phil. Ev. (4th ed.) 616. This seems to us a reasonable rule. We have no doubt that the interests of justice and truth in many cases require the introduction and use of such testimony, and that, when guarded by proper rules, it is as safe and free from objection as any other human testimony which requires the exercise of the judgment and discretion of the court and jury in determining whether it is‘ sufficient to prove the alleged fact. State v. Ward, 39 Vt. 325, 336.

Under this rule, when any writing is proved to be genuine to the satisfaction of the presiding judge, it shall be admitted; and comparisons may be made between that and the writing in dispute, by witnesses, who may give their opinions founded on such comparisons; and then the writings themselves, and the testimony of the witnesses respecting the same, are to be submitted to the jury. It is immaterial whether or not any other evidence has preceded it, from witnesses who have seen the party write, or in any other way have a knowledge of his handwriting, as to the genuineness of the writing in dispute. In England, under that statute, the jury probably need not consider the question of the genuineness of the paper introduced for the purpose of comparison, as the statute seems to make the finding of the judge on that point conclusive; but without such a statute it would seem to be necessary that the evidence of the genuineness of such paper should be introduced to the jury, and then that the jury should find that fact for themselves upon all the evidence. With this modification, we see no reason why this English rule may not be adopted in this state as a plain and just rule, to be followed in all such cases. The state of Vermont has adopted a similar rule. State v. Ward, 39 Vt., supra.

In this last case, it is said, “ in criminal prosecutions, when the guilt of the accused is sought to be established by proof afforded by comparison of handwriting, the sufficiency of the proof given of the genuineness of the papers offered as standards is a preliminary point addressed to and in the first instaiice to be determined by the court before permitting the papers to go to thq jury. The court having adjudged the papers genuine, and having permitted them to go to the jury, it then becomes the duty of the jury, before making comparison of a disputed writing with them, to examine the testimony respecting their genuineness, and decide whether their genuineness was established beyond a reasonable doubt” (that being a criminal case); “and in such cases the court should instruct the jury that if they did not find by such measure of proof that the papers offered as standards are genuine, they should not be used as evidence against the prisoner.”

In this state, then, any competent evidence, tending to prove that the paper offered as a standard of comparison, is genuine, is to be received, no matter whether that evidence be in the nature of an admission of the proper party, or the opinion of a witness who knows his handwriting, or of any other kind whatever. It is to be received, and then the jury are to be instructed that they are first to find, upon all the evidence bearing upon that point, the fact whether the writing introduced for the purpose of comparison, or sought to be used for that purpose, is genuine. If they find it is not so, then they are to lay this writing and all the evidence based upon it entirely out of the case ; but if they find it genuine, they are to receive the writing and all the evidence founded upon it, and may then institute comparisons themselves between the paper thus used and the one in dispute, and settle the final and main question whether the signature in dispute is or is not genuine. We think this is the true rule, that is, or ought to be, adopted in this state. It is no longer the criterion to exclude everything that raises a collateral issue. If the testimony is competent, that is sufficient; and it is for the court to decide when the evidence becomes so distant and shallow on collateral issues that it should be excluded. Darling v. Westmoreland, 52 N. H. 401.

But after preparing our opinion with the expectation that the case would bo so amended as to make .the testimony of Bushee competent, we now find that no amendment of the case is to be made ; and looking at the testimony as it stands in the case, I cannot see how it can be competent. It does not appear that the witness ever saw the respondent write, or -was in any way acquainted with her handwriting. He did not know who wrote this paper, and had no belief about it; the writing had no date, address, or signature. All that does appear is, that, two or three days after the prisoner was arrested, the witness went into a room previously occupied by her, looked into a box, and found a paper with writing upon it, which he produced, and testified was the one he thus found. This is all there is of it. It does not appear whether she occupied the room alone or with one or more other persons, how long she had occupied it, or for what purpose or in what way, whether she had or might have had any occasion to use this work-box or stand in lier room, or whether it had been used by her room-mates or others.

And after the arrest, it does not appear whether this room had been occupied or not; or, if so, by whom. A new occupant may have come into this room and brought this work-box and paper after the arrest, or there may have been several occupants. It does not appear that the prisoner ever had any article of furniture in that room, or if she had, that she had not removed it, or it had not been removed by somebody else; and as to this paper, there is no more evidence that the prisoner wrote it than that anybody else did, except it was found in a room she once occupied. It seems unaccountable that this testimony should have been left in this way. Its importance in the case, and the ease with which other facts might evidently have been proved, which would have made the evidence not only competent but very probably controlling, has led us to suppose the case would be amended so as to show that there was not only competent evidence, but such as would satisfy the jury that this paper was written by the respondent, and therefore was competent to be received in evidence for the purposes of comparison. But as the case stands, the evidence, we think, was improperly admitted, and the exception well taken, and the entry must be,

Judgment reversed.