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to form an opinion which enabled him to say he believed the handwriting in question was genuine, this was held by Park, J., to be sufficient. Smith v. Sainsbury, 5 C. and P. 196 (a). So where letters are sent, directed to a particular person, and on particular business, and an answer is received in due course, a fair inference arises that the answer was sent by the person whose *handwriting it purports to be. Per Lord [*197] Kenyon, Cary v. Pitt, Peake, Ev. App. 86. And in general, if a witness has received letters from the party in question, and has acted upon them, it is a sufficient ground for stating his belief as to the handwriting. Tharpe v. Gisburne, 2 C. and P. 21 (b). And the receipt of letters, although the witness has never done any act upon them, has been held sufficient. Doe v. Wallinger, Mann. Index, 131.
In general, a document cannot be proved by comparing the handwriting with other handwriting of the same party, admitted to be genuine ; and the reason is, that specimens might be unfairly selected, and calculated to serve the purposes of the party producing them, and therefore not exhibiting a just specimen of the general character of the handwriting (1). See Burr v. Harper, Holt, 421 (c). Thus an inspector of franks at the post office, who has never seen the party write, though perfectly acquainted with his handwriting on franks, has been rejected as a witness. Batchelor v. Honeywood, 2 Esp. 714. In the case of ancient documents, where it is impossible that the usual proof of handwriting can be given, the rule as to comparison of hands does not apply. B. N. P. 236 (2). Thus authentic writings may be put into the hands of a witness, and he may be asked whether, upon a comparison of those, with the document in question, he believes the latter to be genuine. Doe v. Tarver, Ry. and Moo. N. P. C. 142 (d). 7 East, 282.
The rule as to comparison of handwriting does not apply to the court or the jury, who may compare the two documents together, when they are properly in evidence, and from that comparison form a judgment upon the genuineness of the handwriting (3). Griffiths v. Williams, 1 Crom. and Jerv. 47. Solita v. Yarrow, 1 Moo. and Rob. 133. But the document with which the comparison is made must be one already in evidence in the case, and not produced merely for the purposes of the comparison. Thus, where upon an indictment for sending a threatening letter, in order to prove the handwriting to it, it was proposed to put in a document undoubtedly written by the prisoner, but unconnected with the charge, in order that the jury might compare the writing with that of the letter, Bolland, B., after considering Griffiths v. Williams, rejected the evidence,
(1) In criminal cases, U. States v. Craig, 4 Wash. C. C. Rep. 729. Hutchin's case, 4 Rogers' Rec. 119. Comm. v. Smith, 6 S. and R. 571. Penns. v. M'Kee, Add. 33, 35. In civil cases, Jackson v. Phillips, 9 Cowen, 94. Root's admr. v. Rile's admr., 1 Leigh, 216. Martin v. Taylor, 1 Wash. C. C. Rep. 1.
It is admissible however where it goes in corroboration of other evidence, M'Corkle v. Binns, 5 Binn. 349. Farmers' Bank v. Whitehill,'10 S. and R. 110. Bank of Penn. v. Jacob's admr. 1 Penn. Rep. 161. Boyd's admr. v. Wilson, Ibid. 211. Myers v. Toscan, 3 N. Hamp. 47. Comm. v. Smith, 6 S. and R. 571. Penn. v. M Kee, Addis. 33, 35. Callan v. Gaylord, 3 Watts, 321. Moody v. Rowell, 17 Pick. 490. Richardson v. Newcomb, 21 Pick. 315. It will not invalidate the positive testimony of an unimpeached witness. Bell v. Norwood, 7 Louis. 95. So comparison of seals is not sufficient. Chew v. Keck & al., 4 Rawle, 163. (2) Strother v. Lucas, 6 Peters, 763. Thomas v. Horlocher, 1 Dall. 14. Woodward & al. v. Spiller, 1 Dana, 180.
(3) Contra, Hutchins' case, 4 Rogers' Rec. 119.
(a) Eng. Com. L. Rep. xxiv. 275. (b) Id. xii. 8. (c) Id. iii. 147. (d) Id. xxi. 400.
observing, that to say that a party might select and put in evidence particular letters, bearing a certain degree of resemblance or dissimilarity to the writing in question, was a different thing from allowing a jury to form a conclusion from inspecting a document put in for another purpose, and therefore free from the suspicion of having been so selected. Morgan's case, 1 Moo. and Rob. 134, (n). See also Bromage v. Rice, 7 C. and P. 548 (a); Doe v. Newton, 5 A. and E. 514, 534 (b).
Where a party to a deed directs another person to write his name for him, and he does so, that is a good execution by the party himself. R. v. Longnor, 4 B. and Ad. 647 (c). In such case the subscription of the name by the agent, and his authority to subscribe it, must be proved (1). Whether the evidence of persons skilled in detecting forgeries is ad[*198] missible, *in order to prove that a particular handwriting is not genuine, is a point not well settled. Such evidence was admitted in one case. Goodtitle v. Braham, 4 T. R. 497. But in a subsequent case, Lord Kenyon, who had presided in the case of Goodtitle v. Braham, rejected similar evidence. Cary v. Pitt, Peake, Ev. App. lxxxv. It was admitted again by Hotham, B. (Cator's.case, 4 Esp. 117); and again rejected in Gurney v. Langlands, 5 B. and A. 330 (d). Upon the pointcoming before the court of K. B., in the last cited case, they refused to disturb the verdict, on the ground of the evidence having been rejected. In a recent case the Court of K. B. was equally divided on the question whether, after the witness had sworn to the genuineness of his signature, another witness (a Bank inspector) could be called to prove that in his judgment the signature was not genuine, such judgment being solely founded on a comparison pending the trial with other signatures admitted to be those of the attesting witness. Doe v. Suckermore, 5 A. and E. 751 (e) (2).
Proof of execution, when dispensed with.] When a deed is thirty years old, it proves itself, and no evidence of its execution is necessary. B. N. P. 255. Doe v. Burdett, 4. A. and E. 19 (f). And so with regard to a steward's books of account if they come from the proper custody; Wynne v. Tyrwhitt, 4 B. and A. 376 (g); letters; Beer v. Ward, Phill. Ev. 652, 8th ed.; a will produced from the Ecclesiastical Court; Doe v. Lloyd, Peake, Ev. App. 91; a bond; Chelsea W. W. v. Cooper, 1 Esp. 275; and other old writings; Fry v. Wood, Selw. N. P. 517 (n). Even if it appear that the attesting witness is alive, and capable of being produced, it is unnecessary to call him where the deed is thirty years old. Doe v. Woolley, 8 B. and C. 22 (h). If there is any rasure or interlineation in an old deed it ought to be proved in the regular manner by the witness, if living, or by proof of his handwriting, and that of the party, if dead. B. N. P. 255. But perhaps this is in strictness only necessary where the alteration on the face of it is material or suspicious. Where an
(1) But proof of his handwriting is not enough. He must be produced himself. M'Kee v. Meyer's Exr. Addis. 32.
(2) An expert who speaks from skill is not competent to establish a forgery. Bank of Penn. v. Jacobs, 1 Penn. 161. Lodge v. Phipher, 11 S. & R. 333.
Contra, Hess v. The State, 5 Ohio, 6. State v. Candler, 3 Hawks, 393. Moody v. Rowell, 17 Pick. 490.
(a) Eng. Com. Law Rep. xxxii. 625. (b) Id. xxxi. 382. (c) Id. xxiv. 131. (d) Id. vii. 118. (e) Id. xxxi. 406. (f) Id. 18. (g) Id. vi. 452. (h) Id. xv. 150.
old deed is offered in evidence without proof of execution, some account ought to be given of its custody; B. N. P. 255; or it should be shown that possession has accompanied it. Gilb. Ev. 97.
Where a party producing a deed upon a notice to produce, claims a beneficial interest under it, the party calling for the deed need not prove its execution. Pearce v. Hooper, 3 Taunt. 62. As where assignees produce the assignment of the bankrupt's effects. Orr v. Morice, 3 B. and B. 139 (a). See also Carr v. Burdiss, 5 Try. 136, 1 C. M. and R. 782; Doe v. Wainwright, 5 A. and E. 520 (b).
But where the party producing the deed does not claim an interest under it, the party calling for it must prove it in the regular manner. Gordon v. Secretan, 8 East, 548; Doe v. Cleveland, 9 B. and C. 864 (c). See further Rosc. N. P. Ev. 93, 4th ed.
Stamps.] In general, in criminal as well as in civil cases, a document, *which is by law required to be stamped, cannot be given in evi- [*199 ] dence without a stamp, unless, as in the cases after mentioned, the instrument itself is the subject matter of the offence. Thus, where upon an indictment for embezzlement, in order to prove the receipt of the money, evidence was tendered of an unstamped receipt for it, given by the prisoner, it was rejected by Bayley, J., Hall's case, 3 Stark. N. P. C. 67 (d). Upon an indictment for setting fire to a house, with intent to defraud an insurance company, in order to prove the insurance, a policy, not properly stamped, was given in evidence, and the prisoner was convicted; on a case reserved, the conviction was held wrong, by six judges against five. Gibson's case, Russ. and Ry. C. C. 138, 2 Leach, 1007, 1 Taunt. 98, S. C.
But where the unstamped instrument is offered in evidence, not for the purpose of proving that, which, had it been genuine, it would have proved, but merely as evidence against the prisoner, of the commission of the offence with which he is charged, it is then admissible without a stamp. The prisoner was indicted for forging a bill of exchange, and it was objected for him, that there was no stamp upon it, and that it could not be received in evidence; but Buller, J., said, that the stamp act was merely a revenue law, and did not purport in any way to alter the law of forgery, and that the false instrument had the semblance of a bill of exchange, and had been negotiated by the prisoner as such, and overruled the objection. Upon a case reserved, the judges were of opinion that the prisoner was properly convicted. Hawkeswood's case, 2 East, P. C. 955, 1 Leach, 257, stated post. A similar objection having been taken in another case, most of the judges maintained the principle in Hawkeswood's case to be well founded. Morton's case, 2 East P. C. 955, stated post. See also Reculist's case, 2 East, P. C. 956, 2 Leach, 703, S. C. Teague's case, 2 East, P. C. 979. If the matter be duly considered, says Mr. East, the words of the stamp acts can only be applicable to true instruments, for a forged instrument, when discovered to be such, can never be made available, though stamped. The acts, therefore, can only be understood as requiring stamps on such instruments as were available without a stamp before those acts passed, and which would be available afterwards, with a stamp. 2 East, P. C. 956.
(a) Eng. Com. Law Rep. vii. 382. (b) Id. xxxi. 385. (c) Id, xvii. 512. (d) Id. xiv. 165.
Where the unstamped document is produced in evidence, not as forming the subject matter of the offence, but for a collateral purpose (not being its proper object), it is admissible. Of this rule there are many instances in civil actions. See Rosc. Dig. Ev. N. P. 155, 4th ed. And upon an indictment under 7 Geo. 3, c. 50, s. 2, for stealing a letter out of the post-office, a check contained in the letter, though drawn on unstamped paper, was received in evidence, for the purpose of proving the fact of the letter having been stolen. Pooley's case, 2 Leach, 900, 1 East, P. C. Add. xvii., 3 Bos. and Pul: 315, S. C.
The rule upon this subject seems to be that where the indictment is [ *200 ] *founded upon a written instrument, and the instrument itself is the crime, it is receivable in evidence without a stamp; but where the indictment is for an offence distinct from the instrument, which is only introduced collaterally, it cannot be received unless it be properly stamped. See per Lord Tenterden, C. J. Smyth's case, 5 C. and P. 204 (a).
Under this head will be considered the evidence against aiders, or principals in the second degree, against accessaries before the fact, and accessaries after the fact.
Proof with regard to aiders and abettors.] Although the law on this subject was formerly not well settled, it is now clear that all those who are present, aiding and abetting, where a felony is committed, are principals in the second degree. 1 Russell, 21; Coalheaver's case, 1 Leach, 66; Foster, 428.
With regard to the nature of the felony, it has been held that the rules with regard to principals in the second degree, apply equally to felonies created by statute, as to those offences which are felonies at common law. Tattersall's case, 1 Russell, 22.
Where a count in an indictment charged A. with the murder of B., and C. and D. with being present, aiding and abetting in the commission of the murder, and it appeared that A. was insane, it was held that C. and D. could not be convicted on that count. Tyler's case, 8 C. & P. 616 (b).
(a) Eng. Com. L. Rep. xxiv. 281. (b) Id. xxxiv. 553.
*Proof with regard to aiders and abettors—what presence is sufficient to make a party a principal in the second degree.] With regard to what will constitute such a presence as to render a man a principal in the second degree, it is said by Mr. Justice Foster, that if several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each takes the part assigned him; some to commit the fact, others to watch at proper distances to prevent a surprise, or to favor, if need be, the escape of those who are more immediately engaged, they are all, provided the fact be committed, in the eye of the law present at it. Foster, 350. Thus where A. waits under a window, while B. steals the articles in the house, which he throws through the window to A., the latter is a principal in the offence. Owen's case, 1 Moody, C. C. 96 (a), stated post.
There must be a participation in the act, for although a man be present whilst a felony is committed, if he take no part in it and do not act in concert with those who commit it, he will not be a principal in the second degree, merely because he did not endeavor to prevent the felony, or apprehend the felon. 1 Hale, 439. Foster, 350.
So a mere participation in the act, without a felonious participation in the design, will not be sufficient. 1 East, P. C. 257: Plumer's case, Kel. 109. Thus, if a master assault another with malice prepense, and the servant, ignorant of his master's felonious design, take part with him, and kill the other, it is manslaughter in the servant, and murder in the master. I Hale, 466.
Where several persons are in company together, engaged in one common purpose, lawful or unlawful, and one of them, without the knowledge. or consent of the others, commits an offence, the others will not be involved in his guilt, unless the act done was in some manner in furtherance of the common intention. Several soldiers employed by the messenger of the secretary of state, to assist in the apprehension of a person, unlawfully broke open the door of a house where the person was supposed to be. Having done so, some of the soldiers began to plunder, and stole some goods. The question was, whether this was felony in all. Holt, C. J., observing upon this case, says, that they were all engaged in an unlawful act is plain; for they could not justify breaking a man's house without first making a demand. Yet all those who were not guilty of stealing were acquitted, notwithstanding their being engaged in an unlawful act of breaking the door; for this reason, because they knew not of any such intent, but it was a chance opportunity of stealing, whereupon some of them did lay hands. Anon. 1 Leach, 7. (n.) 1 Russell, 24. See also White's case, R. and R. 99; Hawkins's case, 3 C. and P. 392 (b), post.
Either an actual presence, or such a presence as may be sufficient to afford aid and assistance to the principal in the first degree, is necessary, in order to render a party guilty as a principal in the second degree (1).
(1) The abettor must be in a situation actually to render aid, not merely where the perpetrator supposed he might.
Proof of a prior conspiracy is not legal presumption of having aided, but only evidence. But if a conspiracy be proved, and a presence in a situation to render aid, it is a legal presumption that such presence was with a view to render aid, and it lies on the party to rebut it, by showing that he was there for a purpose unconnected with the conspiracy. Commonwealth v. Knapp, 9 Pick. 496.
(a) 2 Eng. C. C. 96. (b) Eng. Com. L. Rep. xiv. 365.