Crist v. State , 21 Ala. 137 ( 1852 )

LIGON, J.

— I do not think there is any error in the record, so far as the bill of exceptions discloses the proceeding of the court below.

The facts set out show, that the several registers of the Eu-taw House, Tuft’s Hotel, and the Exchange Hotel were permitted to go to the jury without objection, accompanied by parol proof which tended to show that the names of “Nathan H. Crist,” on the first, of “N. P. Coleman,” on the second, and “ B. E. Tooker,” on the third, were severally written on them by the plaintiff in error, and that these were the names which he assumed in the several cities of New Orleans, Mobile and Montgomery. The jury being thus possessed of the writings, without the objection of the plaintiff in error, the law does not deny them the right to compare these signatures one with another, in order, by such comparison, to aid them in coming to a conclusion as to whether the name of N. P Coleman, found in that of the Eutaw House, was written by the plaintiff in error, and is the writing of the same person who wrote the two others.

Mr. Phillips, in his work on Evidence, lays down both the rule and the reason on which it is founded, in the following words: “ Within a recent period a rule has been established, which amounts to a considerable relaxation of the strictness of the law in regard to the direct comparison of hand-writing. It is this : that a jury, upon a question respecting the identity of hand-writing, may take other papers already in evidence, and compare them with that which is in dispute, for the purpose of coming to a conclusion, from comparison, whether the disputed hand-writing is genuine.” 1 Phil. Ev., 654-5.

“ The principle on which this rule is founded, has been stated to be, that the jury having the documents before'their eyes, and being obliged to look at them for another purpose, it is impossible to prevent their forming some opinion with respect to their being like or unlike the disputed writing; and, consequently, when their minds must be so employed, it is better for the court to enter into the examination, and to suggest such observations as may occur to it as to the value of such evidence. It may be remarked, that, from the constitution of the human mind, a jury might be expected to feel some gratification of curiosity in the discovery of minute coincidences in hand-writing, and that this feeling might often mislead them, even where the coincidences were fanciful or accidental.

“To prevent such consequences, a qualification is engrafted on the last mentioned rule, which is, that documents irrelevant to the issues on the record are not to be received in evidence at the trial, in order to enable a jury to institute such a comparison. The principle which has been above stated, as that on which a jury are allowed to compare hand-writings, does not extend to the admission of documents irrelevant to the cause. Such as are connected with the cause must be proved to be genuine, for the purpose of determining the matters in controversy.”

Mr. Greenleaf, speaking of the relaxation of, and exceptions to the rule which requires that no evidence of handwriting shall be allowed, except that of a witness who has a personal knowledge of the hand-writing of the party, states, as a second exception, “'where other writings, admitted to be genuine, are already in the case. Here the comparison may be made by the jury. The reason assigned for this is, that as the jury are entitled to look at such writings for one purpose, it is better to permit them, under the advice and direction of the court, to examine them for all purposes, than to embarrass them with impracticable distinctions to the peril of the cause.” 1 Greenl. Ev., 734, § 578.

These rules are generally received and acted upon in the English and most of the American courts, and clearly demonstrate the propriety of the charge given in the court below. Although in this case the hand-writing exhibited on the several registers was not admitted by tbe plaintiff in error to be genuine, yet it appears to have been proved to be bis by credible witnesses, and in two instances by testimony wholly unimpeached, and was permitted to go to the jury without any objection on 'the part of the plaintiff in error. This, I apprehend, will as effectually, establish its genuineness, as though it had been admitted.by the prisoner. After the jury had thus obtained possession of the writings, the court could not, according to well settled principles of the law, divest them of that possession, or deprive them, by'its charge, of their privilege of comparing them with each other, to aid them in coming to a conclusion as to the genuineness of either.

The fact, that the testimony of the witness, Curl, conflicts with that of Eoulston, who testified that the prisoner wrote the name of “N. P. Coleman” on the register of the Eutaw House on the 25th of February, 1852, when the balance of the record is examined, cásts but little if any suspicion on the testimony of the latter. Curl swears, that the prisoner did not reach Mobile until the 26th of February, the day after the homicide for which he was indicted had been perpetrated, and that he came with Crist from New Orleans on that occasion in the same vessel. Opposed to .this, however, is the testimony of Eoulston, Fleming, and, in the language of the bill of exceptions, “several other witnesses,” all of whom testified that the prisoner was in Mobile on the 25th of February, on the night of which day Nye was killed. None of these witnesses were impeached, and as Eoulston is thus sustained, his testimony is sufficient to establish the hand-writing of the prisoner on the register of the Eutaw House.

But suppose a shade of suspicion had been cast upon the evidence of the genuineness of the hand-writing on this register, yet, as the testimony was sufficient to allow the writing on the register to go to the jury, and that, too, as far as we are advised, without any objection on the part of the prisoner, I can see no reason why the privilege of comparing this'hand- ■ writing with the others, in order to ascertain its genuineness, should be taken from the jury. That they could, under such circumstances, resort to such comparison for that purpose, has been already decided by this court in the case of the State v. Givens, 5 Ala., 747, in which it was said that, “ where there is other evidence, and tbe jury are in doubt, it is perhaps proper that they should, for the purpose of satisfying their minds, refer to writings which have been offered as proof in the cause. But whether or not it be correct to do so, in the nature of things it would seem impracticable to prevent it, as the jury are not bound to disclose the ground on which they attained a conclusion.”

When it is apparent that that which is contended for as a rule to govern courts in the administration of justice, is in itself impracticable, and cannot be enforced by the court; such impracticability will be conclusive against its existence as a rule.

None of the cases to which we have been referred by the counsel for the plaintiff in error, conflict directly with these views. Most of them relate to attempts made on the trial to introduce instruments foreign to the issue, for the purpose of instituting a comparison to establish the genuineness of the disputed instrument. They all hold that this is not .allowable. That, however, is not the question presented by the record before us, and consequently we express no opinion upon it.

The next error to which our attention, is called, is supposed to be found in that portion of the minutes of the court which record its action at the time of, and during the trial, and it is said that this does not show that the jury was sworn. It may be here remarked, that we are not aware that there exists now, or-ever has existed in the courts of this State, any fixed form of words in which such entries are required to be made. The form adopted in England, and followed in some of the United States, is not indispensable to the legal sufficiency of such entries. To make them good, they should show substantially that all was done at the trial which the law requires to be done, and this must be set down in fit and expressive words. No precise combination of them is necessary to the validity of the entry, although it is more comely and appropriate when made with a due regard to form, than when such form is wholly or to a great extent abandoned. Although the trial may continue during several days of the term, and the adjournment and re-assembling of the court may be noted by the clerk on his minutes, still, all that is recorded therein from the beginning of the trial to the judgment must be regarded as but one entry, and we may look to the whole to ascertain its sufficiency. 1 Douglass, 306.

However unclerical may be several of tbe terms found in this record, and however much it may be regretted that in, a record of so grave a character, any deviation from the appropriate language of ordinary forms may occur, yet, on the record, such as it is, there is no rational ground for doubt as to whether the jury were sworn before they entered upon the discharge of their highly responsible duties. The entry recites, “ This day came the State of Alabama, by its solicitor, and also came the defendant in person and by counsel, and the plea of not guilty having been made at a former day of the court, thereupon came a jury, to-wit: (here follow twelve names,) good and lawful jurors, who were selected and empanneled well and truly to try the issue joined between the State of Alabama and the said defendant;-and after the evidence of all the witnesses had been given in, and the argument of counsel had been heard, the jury received the charge of the court, and retired in charge of the sheriff to make up their verdict, and now return into court and on their oaths do say, we, the jury, find the defendant guilty,” &c. It is also stated in said minute entry, at the part of it which is left blank in the extract above, that the court, by consent of parties, adjourned over from Monday evening until Tuesday morning, when it again met, the prisoner and his counsel and the solicitor for the State being present; and it proceeds, “ together with the jury that had been empanneled and sworn as aforesaid.” Here we have the terms “ good and lawful jurors” returning their verdict “ on their oaths,” grouped together in the same entry. It would be difficult to arrive at any other reasonable conclusion, than that they were sworn. With a knowledge of the practice universally prevailing in this State, of swearing the jury in all cases before the testimony is introduced, it is not carrying the doctrine of intendment in favor of the regularity of the-proceedings in courts of general jurisdiction too far, or to an unauthorized extent, to hold, that the jury in this case were sworn before they heard the testimony. “It is enough that the records of such a court are certain to a certain intent in general. It is not necessary that they should be certain to a certain intent in every particular, so as absolutely to exclude every possible conclusion, and all argument, presumption or inference against them. The time was in England, when, it being entirely at tbe pleasure of tbe crown to grant or refuse a writ of error in a criminal case, subtle objections like that now raised were allowed to prevail, in order to carry into effect tbe presumed’ will of tbe crown to extend mercy to tbe prisoner. But it bas long since been settled there, and certainly is tbe law bere, that a judgment in a criminal case cannot be reversed without showing substantial error.” The State v. Christmas, 4 Dev. & Bat., 410.

It is also said to be error, because by tbe record it appears that tbe nature and form of tbe oath administered to tbe jury was tbe same as that administered in tbe trial of ordinary issues before them, when it is insisted it should show that an oath conforming to that administered to jurors by tbe English courts in capital cases, or at least approximating to that oath, bad been administered. Were this question entirely an open one in this State, we should regard tbe objection much too technical to deserve favor. But an objection substantially tbe same was made in tbe case of tbe State v. Pile & Pile, 6 Ala., 72, and was overruled by tbe court. In that case it bad a claim to favor which it bas not bere, as it had been made in tbe court which tried tbe cause, and not for tbe first time in this court.

Tbe record bere shows that tbe jury was sworn “well and truly to try tbe issue j oined between tbe State of Alabama and tbe defendant.” We are at no loss as to what that issue was; for tbe same record distinctly informs us, that tbe defendant bad been arraigned on an indictment at tbe instance of tbe State, charging him with tbe crime of murder, and that be bad pleaded not guilty. His guilt or innocence of this charge was tbe only issue they could try. Tbe oath recited in tbe record is a sufficient compliance with tbe requirements of § 46, 10th chap, of tbe Penal Code. Tbe oath there prescribed by its terms is extended to both civil and criminal cases, and virtually abolishes or renders unnecessary tbe oath contended for by tbe counsel for tbe prisoner, and all others heretofore administered in such cases.

Tbe objection that tbe wrong tense is employed in recording tbe action of tbe court and jury, that tbe past and not tbe present tense is used in reference to it, if of any value in any Case, does not apply to this record.

It only remains to add, tbat there is no-substantial error in tbe record, and tbe judgment is affirmed.