McCombs v. State , 109 Ga. 496 ( 1900 )

Fish, J.

1. The evidence, in our opinion, was not sufficient to show that the accused was guilty of the offense charged. Therefore we deem it unnecessary to pass upon the numerous exceptions, in the motion for a new trial, to the admission of evidence and to instructions given to the jury. The mere fact that the two letters referred to in the official report were found in the possession of the accused was not of itself sufficient to show that she wrote them, and thus establish the handwriting thereof as a standard with which to compare the handwriting of the forged order. The mere possession of such letters would not even prove that she could write. Section 5247 of the Civil Code provides that “Other writings, proved or acknowledged to be genuine, may be admitted in evidence for the purpose of comparison by the jury.” As said by Atkinson, J., in McVicker v. Conkle, 96 Ga. 595, “Where a paper is offered for the purpose of comparison, its execution by the maker must be either proved or acknowledged by him. Before it could be set up as a standard by which to judge of the genuineness •of another paper, the handwriting must be established as being that of the alleged maker of the collateral paper. Its force as evidence can not be made dependent upon inference; because, in order to determine by comparison the identity of makers by similarity of handwriting, it is of prime consequence that we first establish a genuine standard; otherwise, it would be impossible to reach even an approximately correct conclusion.” In Van Sickle v. People, 29 Mich. 61, it was held that the mere finding of a diary on a party, with an admission by him that it was his, is not a sufficient authentication of the writing to justify its use as a standard. ' Graves, 0. J., in delivering the opinion, said: “The circumstance, if such was the truth, that the plaintiff in error owned the book and claimed it as his, might have helped to show, that the writing in it was actually made by him, but standing alone and.by itself it was inadequate to show that fact. It is certainly possible that he wrote the matter contained in the diary, but the probability that he did so is not sufficiently assimed by evidence of his ownership to warrant the assumption which was made. It would, I think, be a very unsafe rule to hold that the possession and ownership of a book or document .may authorize an inference that the owner can write, that he did write the matter contained in it, and then, on the foot of these inferences, charge him as the author of other and wholly disconnected writings.” The letters in the case under consideration should not have been admitted in evidence, had they been properly objected to. Although it is not clear that a proper objection was made to their introduction, yet, as it is manifest that they were neither proved nor acknowledged to be in the handwriting of the accused, they furnished no standard with 'which to ■compare the handwriting of the forged order.

2. The only other circumstance that the State could have relied upon for a conviction was, that shoes exactly similar’’to' those delivered by Kuttner to the bearer of the forged order — ’ whose identity with the accused was not established — were found, more than four months after such delivery, in the possession of the accused. Considering the fact that the testimony ’ of the only witness who undertook to identify the shoes found in the possession of the accused with those delivered upon the-forged order does not, in our opinion, establish such identity beyond a reasonable doubt, the facility with which such articles can pass from hand to hand, and the time which had elapsed from the delivery of the goods upon the order to the-finding of them in possession of the accused, and her statement-in explanation of her possession, which, if true, was consistent-with her innocence, we do not think that this circumstance alone was sufficient to authorize the jury to find her guilty. See Johnson v. State, 48 Ga. 117; Tarver v. State, 95 Ga. 222; Brooks v. State, 96 Ga. 353; Jones v. State, 105 Ga. 649.

3. The evidence introduced for the purpose of connecting the accused with the forgery was wholly circumstantial, and, while it may have been sufficient to raise a strong suspicion of her guilt, it was not sufficient to exclude every other reasonable hypothesis; and hence her conviction was unauthorized.

Judgment reversed.

All the Justices concurring.