The opinion of the court was delivered by
Royce, J.
The respondent was tried upon an indictment charging him in the first count with having, on the first day of August, 1876, forged and counterfeited the name of Charles H. Green upon a bill of exchange for the sum of 1541.10 payable to said Green, and drawn upon The Fire Association of Philadelphia, and in the second count with having uttered and put off the same bill of exchange with the name of said Green so forged and counterfeited upon it. The utterance and putting off of said bill of exchange were admitted, and the only question in the case was, whether the signature of Charles H. Green upon it was genuine. The first question presented by the exceptions is as to the admis[329]*329sibility as evidence of certain postal cards written by Green and addressed to the firm of Bowman & Hopkins, of which firm the respondent was then a member, and received by them between the eleventh day of August and the twenty-sixth of September, 1876, making inquiries if that check had come. That evidence had no tendency to prove the corpus delicti, and the only use that could properly be made of it was, to show that the conduct of Green at the time he wrote the cards was consistent with the evidence he gave upon the trial. It would have been admissible for Green, after having testified that the respondent was to procure a check for him, to have testified that he made inquiries for the check; and if the inquiries were made in writing, the writings would be the best and most satisfactory evidence of the fact. And as affecting the question of their admissibility as evidence, it would be immaterial whether the respondent ever saw them or not.. It does not appear affirmatively what use the jury were directed to make of them ; but, in the absence of any statement in the exceptions upon the subject, the presumption is that the jury were properly instructed as to their use.
The state was.permitted to show that The Eire Association became convinced as early as October 5th, 1876, that the name of Green upon the back of the draft was a forgery, and offered to pay him his loss, and did pay him some time in February, 1877. This evidence was offered, as stated by the state’s attorney, for the sole purpose of fixing the date when Green’s pecuniary interest in the matter in controversy ceased, and was admitted for that purpose alone. Without considering the question as to whether the evidence had a legal tendency to show that Green’s pecuniary interest in the subject-matter was determined by the payment made to him by The Fire Association, the purpose of the state as stated in the offer would have been attained by limiting the inquiry to the fact that payment had been made to Green by The Fire Association before he was called upon to testify. But as the offer was made and the question permitted to be put by the court, the conviction of The Fire Association that the signature of Green upon the draft was a forgery, was admitted in evidence. It was, in substance getting the opinion of The Fire Association upon the [330]*330question of the genuineness of Green’s signature into the case as evidence. The facts stated in the exceptions do not disclose any reason that would justify the admission of the convictions or opinions of The Eire Association upon that question as evidence. The evidence, then, having been erroneously admitted, was the error cured by the use the court instructed the jury they were to make of it ? The court instructed the jury that it was to be considered for the purpose indicated by the offer, and for no other purpose ; thus virtually saying to the jury that they were to consider the evidence which had been given of the conviction of The Eire Association that the signature of Green upon the draft was a forgery, as bearing upon the date when his pecuniary interest in the matter ceased, and not upon the question of the genuineness'of Green’s signature. It oftentimes happens in the course of a trial that evidence which standing alone would not be admissible, is admitted upon the claim made that other evidence will be introduced bearing such relation to the evidence offered as to make it admissible; in other words, that the evidence offered is one link in a chain of evidence, and that the other links will be supplied. And in such a case, if the promised evidence is not supplied, it is the duty of the court to instruct the jury that they are not to consider the evidence admitted. But where evidence is offered which standing alone is not admissible, unaccompanied by any claim that evidence will be introduced having such relation to it as to make it admissible, it is error to admit it, and the error cannot be cured by instructing the jury to disregard it. Conn. & Pass. Railroad Company v. Baxter, 32 Vt. 805; Sterling v. Sterling, 41 Vt. 80. The wisdom and necessity of this rule for the protection of parties accused of crime must be apparent. The question of guilt or innocence is not to be determined by the convictions or opinions of witnesses who are not entitled by law to give them in evidence ; and where such convictions or opinions are in evidence, it is impossible to forecast what influence they may have upon a jury, notwithstanding the efforts of the court to prevent it. Hence, we think it was error to admit the evidence that The Eire Association had become convinced that the name of Green upon the draft was a forgery.
[331]*331The exception taken to the admission of the checks made by Green which had passed through the Barton National Bank from July, 1876, to May, 1877, as showing samples of his handwriting, presents the question as to how far his genuine handwriting was admissible as tending to show by comparison that his signature upon the draft was a forgery. The checks were clearly admissible for the purpose for which they were offered, unless they, or some of them, were made at a time when Green had an interest in establishing the fact that his signature upon the draft was a forgery. As the case is made up,, it does not appear that he had any such interest, and there was no error in admitting them.
The state introduced Charles Calderwood as a witness, who testified, from his knowledge of the handwriting of Green, that in his opinion the signature upon the draft was a forgery. In his cross-examination the witness was shown a signature of Green’s which had been used upon the trial, and which was acknowledged to be genuine, and was asked to point out the difference between that signature and the signature of Green upon the draft. Upon objection being made by the state, the court ruled that the question was inadmissible, upon the ground that the witness was not an expert. That ruling we think was erroneous. The weight to be given to the opinion of a witness who bases his opinion upon familiarity with handwriting, depends largely upon the extent of his familiarity ; and for the purpose of testing that and his ability to distinguish between a signature that is claimed to be forged and one that has been used upon the trial and is acknowledged to be genuine, it is the right of the party accused of committing the forgery to inquire of the witness what difference there is between the two signatures.
The exception to the refusal of the court to permit the respondent to put leading questions to a witness introduced by him upon re-examination, upon new matter called out upon his cross-examination, was well taken.
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The opinion of the court was delivered by
Royce, J.
The respondent was tried upon an indictment charging him in the first count with having, on the first day of August, 1876, forged and counterfeited the name of Charles H. Green upon a bill of exchange for the sum of 1541.10 payable to said Green, and drawn upon The Fire Association of Philadelphia, and in the second count with having uttered and put off the same bill of exchange with the name of said Green so forged and counterfeited upon it. The utterance and putting off of said bill of exchange were admitted, and the only question in the case was, whether the signature of Charles H. Green upon it was genuine. The first question presented by the exceptions is as to the admis[329]*329sibility as evidence of certain postal cards written by Green and addressed to the firm of Bowman & Hopkins, of which firm the respondent was then a member, and received by them between the eleventh day of August and the twenty-sixth of September, 1876, making inquiries if that check had come. That evidence had no tendency to prove the corpus delicti, and the only use that could properly be made of it was, to show that the conduct of Green at the time he wrote the cards was consistent with the evidence he gave upon the trial. It would have been admissible for Green, after having testified that the respondent was to procure a check for him, to have testified that he made inquiries for the check; and if the inquiries were made in writing, the writings would be the best and most satisfactory evidence of the fact. And as affecting the question of their admissibility as evidence, it would be immaterial whether the respondent ever saw them or not.. It does not appear affirmatively what use the jury were directed to make of them ; but, in the absence of any statement in the exceptions upon the subject, the presumption is that the jury were properly instructed as to their use.
The state was.permitted to show that The Eire Association became convinced as early as October 5th, 1876, that the name of Green upon the back of the draft was a forgery, and offered to pay him his loss, and did pay him some time in February, 1877. This evidence was offered, as stated by the state’s attorney, for the sole purpose of fixing the date when Green’s pecuniary interest in the matter in controversy ceased, and was admitted for that purpose alone. Without considering the question as to whether the evidence had a legal tendency to show that Green’s pecuniary interest in the subject-matter was determined by the payment made to him by The Fire Association, the purpose of the state as stated in the offer would have been attained by limiting the inquiry to the fact that payment had been made to Green by The Fire Association before he was called upon to testify. But as the offer was made and the question permitted to be put by the court, the conviction of The Fire Association that the signature of Green upon the draft was a forgery, was admitted in evidence. It was, in substance getting the opinion of The Fire Association upon the [330]*330question of the genuineness of Green’s signature into the case as evidence. The facts stated in the exceptions do not disclose any reason that would justify the admission of the convictions or opinions of The Eire Association upon that question as evidence. The evidence, then, having been erroneously admitted, was the error cured by the use the court instructed the jury they were to make of it ? The court instructed the jury that it was to be considered for the purpose indicated by the offer, and for no other purpose ; thus virtually saying to the jury that they were to consider the evidence which had been given of the conviction of The Eire Association that the signature of Green upon the draft was a forgery, as bearing upon the date when his pecuniary interest in the matter ceased, and not upon the question of the genuineness'of Green’s signature. It oftentimes happens in the course of a trial that evidence which standing alone would not be admissible, is admitted upon the claim made that other evidence will be introduced bearing such relation to the evidence offered as to make it admissible; in other words, that the evidence offered is one link in a chain of evidence, and that the other links will be supplied. And in such a case, if the promised evidence is not supplied, it is the duty of the court to instruct the jury that they are not to consider the evidence admitted. But where evidence is offered which standing alone is not admissible, unaccompanied by any claim that evidence will be introduced having such relation to it as to make it admissible, it is error to admit it, and the error cannot be cured by instructing the jury to disregard it. Conn. & Pass. Railroad Company v. Baxter, 32 Vt. 805; Sterling v. Sterling, 41 Vt. 80. The wisdom and necessity of this rule for the protection of parties accused of crime must be apparent. The question of guilt or innocence is not to be determined by the convictions or opinions of witnesses who are not entitled by law to give them in evidence ; and where such convictions or opinions are in evidence, it is impossible to forecast what influence they may have upon a jury, notwithstanding the efforts of the court to prevent it. Hence, we think it was error to admit the evidence that The Eire Association had become convinced that the name of Green upon the draft was a forgery.
[331]*331The exception taken to the admission of the checks made by Green which had passed through the Barton National Bank from July, 1876, to May, 1877, as showing samples of his handwriting, presents the question as to how far his genuine handwriting was admissible as tending to show by comparison that his signature upon the draft was a forgery. The checks were clearly admissible for the purpose for which they were offered, unless they, or some of them, were made at a time when Green had an interest in establishing the fact that his signature upon the draft was a forgery. As the case is made up,, it does not appear that he had any such interest, and there was no error in admitting them.
The state introduced Charles Calderwood as a witness, who testified, from his knowledge of the handwriting of Green, that in his opinion the signature upon the draft was a forgery. In his cross-examination the witness was shown a signature of Green’s which had been used upon the trial, and which was acknowledged to be genuine, and was asked to point out the difference between that signature and the signature of Green upon the draft. Upon objection being made by the state, the court ruled that the question was inadmissible, upon the ground that the witness was not an expert. That ruling we think was erroneous. The weight to be given to the opinion of a witness who bases his opinion upon familiarity with handwriting, depends largely upon the extent of his familiarity ; and for the purpose of testing that and his ability to distinguish between a signature that is claimed to be forged and one that has been used upon the trial and is acknowledged to be genuine, it is the right of the party accused of committing the forgery to inquire of the witness what difference there is between the two signatures.
The exception to the refusal of the court to permit the respondent to put leading questions to a witness introduced by him upon re-examination, upon new matter called out upon his cross-examination, was well taken. The rule upon the subject is, that where new matter is called out upon cross-examination, the witness as to such new matter is regarded as the witness of the party who calls it out, and he is subject to the same rules as far as the right of cross-examination is concerned as he would be if the party [332]*332calling out such new matter had first improved the witness. If the court-had put its refusal upon the ground of discretion, a different rule might, and probably would, prevail.
It was not error, under the facts detailed, to admit the witness Preston to testify. The statute under which it is claimed he should have been excluded, must be reasonably construed, and to a certain extent it must be discretionary with the court whether to enforce it according to the letter or not. It cannot have been intended that it should be so construed as to exclude the necessai’y officers of the court; and where the court has exercised its discretion in permitting an officer of the court to testify who had remained in court during the trial, in order to warrant a reversal of the judgment on that account, it should appear that some right of the respondent has thereby been prejudiced.
We discover no error in the admission of the facts testified to by the witness Bowman, or the use of the telegram produced by him, or the copy of the telegram produced by Green, for the purpose for which they were put in and used.
The most important question arises upon the admission of the evidence of the witness May. If the respondent in his defence had introduced evidence tending to show that he did not possess the capacity to commit the crime with which he was charged, it would have been competent for the state to meet such proof by opposing evidence ; but as we understand the case, no such evidence was introduced by the respondent, and the witness was permitted to testify to the ability of the respondent to imitate or counterfeit the signatures of other parties. The guilt or innocence of a party charged with crime is not to be determined upon any such theory of the law of evidence. No inference of guilt can be established by showing that the party charged had the ability to commit the crime. Proof that the party had previously committed other crimes similar to the one with which he was charged, would not have been admissible. People v. Corbin, 56 N. Y. 363; Reed v. Spaulding, 42 N. H. 118. The general reason given for the rejection of that class of evidence is, that the party charged is not to be prejudiced upon his trial by evidence of his previous character. The commission of crime includes the [333]*333ability to commit it; and if evidence of the commission of crime is not admissible as bearing upon the question of guilt, it is difficult to see why evidence of ability alone should be. We think the court erred in admitting the evidence.
The exceptions are sustained, judgment reversed, and cause remanded for a new trial.