State v. McBride , 30 Utah 422 ( 1906 )

BARTCH, O. J.

The defendant was prosecuted for and convicted of the offense of carnally knowing a female over the age of thirteen and under the age of eighteen years, and was sentenced to imprisonment in the penitentiary. He thereupon appealed to this court. At the trial the prosecuting witness, so far as material here, testified, in substance, that she first met the defendant in March, 1904; that at that time she had a conversation with him, went buggy riding with him, and that when they returned he walked home with her; that she saw him again two days later. She says she saw him next at the post office April 1st; met him at the Johnston hotel, and saw him again at the same hotel on April 29th, between 8 and 9 o’clock in the evening; and that- she walked with him to the depot, then back to the hotel and up to his room; that he told her his name was Jack McAuliffe; that on both occasions, April 1st and 29th, they had sexual intercourse; and that he accomplished his designs through force and persuasion. She identified four letters, Exhibits 0, D, E, and E, signed “Jack McAuliffe,” as letters she had received, and claimed he had talked to her about two of them, but she never saw him write. The defendant, testifying in his own behalf, denied the truth of all the material statements of the prosecuting witness. He testified that he never knew her until he saw her in the courtroom after this prosecution had heen instituted; that he never had any association with her, and never wrote to ber either over bis own signature or that of Jack McAuliffe; that be did not write the letters which were introduced in evidence, and never admitted to the prosecuting witness that he had written them; and that he “never had anything to do with her, or say to' her, in any relation whatever.” In his testimony he also gave an account of his whereabouts during the evening of April 29th, the time when, it was charged, he committed the offense, and in this he is corroborated by several witnesses. As to the commisrsion of the act, on either occasion, the statements of the prosecuting witness are not corroborated by any other direct evidence:

The principal question presented on this appeal has arisen out of the introduction in evidence of the letters referred to above. Counsel for the prosecution, upon offering in evidence those letters, interrogated the prosecuting witness as follows: “Referring again to this letter marked state’s Exhibit C, I will ask you as to whose handwriting this is ?” To this the defense objected upon the ground that no* foundation had been laid, it not having been shown that the witness was competent; that it had not been shown that she knew the defendant’s handwriting; nor that she was an expert; nor that slie had ever seen him write. The objection was overruled, and the witness answered that it was his handwriting. Practically the same proceedings were had respecting each of the other letters. It is contended, in behalf of the appellant, that the court erred in permitting the witness to- thus testify, and we are of the opinion that this contention is well founded. Her own evidence showed her incompetency to testify on the subject of his handwriting, for she admitted that she never saw him write, and that she was not an expert on handwriting. It is true that, as to two of the letters, she claimed he acknowledged to her that he wrote them or sent them, but this he positively denied, and there was nothing to' corroborate her statement. To identify the several letters as those, of the accused, the prosecution called the witness Brewerton, who claimd to know the defendant’s handwriting, but the witness said: “I couldn’t say positively that McBride wrote either one of those letters* because I don’t know. Didn’t see him write them, and don’t know that he wrote them. My knowledge of his handwriting is so vague that the slightest little circumstance that I think he might not have been there would have a tendency to raise a serious doubt about whether he wrote a certain letter that is exhibited to me.” In the opinions of other witnesses, familiar with the accused’s handwriting, none of the letters were written by him.

To say the least, in view of such evidence, the authenticity bf even the two letters above referred to, and which she claimed he acknowledged he bad written, was in serious doubt and hence could not become the basis of comparison which was her" only means of determining the genuineness of the other two; for there was no other paper in evidence^ nor did the witness, so far as appears, ever have in her possession any instrument of any kind from the accused, the genuineness of which was not in dispute. The law is well settled that for the admission of such evidence it is essential that the authenticity of the paper, which becomes the standard of comparison, be established by positive proof and not left in uncertainty and doubt. Therefore,

“Before a witness will be permitted to testify as to a person’s band-writing from knowledge derived from seeing papers purporting to have been written by him, it must be clearly shown that such papers were in his handwriting.” (15 Am. & Eng. Ency. Law, 257.)

“It is a prerequisite,” says Mr. Wharton, “to the admission of such proof that the writings from which the witness has drawn his knowledge should be genuine. It will not be enough that the witness obtains his knowledge from letters whose genuineness is in dispute.” (Whart., Crim-Ev. section 552.)

Mr. Rogers, iu his work on Expert Testimony (section 138), says:

“The general rule moreover is that the proof of' the genuineness of the instrument thus offered must be positive. It should be proved either by the admission of the party when the standard is not offered by himself, or else by the testimony of persons who testify directly and positively to having seen the party write the paper.”

In Martin v. Maguire, 7 Gray (Mass.) 177, it was said:

“The mode of proving the genuineness of the paper in controversy, by comparison merely with other documents, has often been questioned elsewhere, though with us it is always allowed. But the paper with which the comparison is to be made must be unquestionably a genuuine paper, and that must be shown beyond a doubt.”

Tbis court, in Tucker v. Kellogg, 8 Utah. 11, 28 Pac. 870, said:

“The common law excludes a comparison of handwriting as proof of signature. But to the general rule there is this exception: That if a paper admitted to be in the handwriting of the party, or to have been subscribed by him, is in evidence for some other purpose in the case, the signature or paper in question may be compared by the jury, with or without the aid of experts. The principal reasons given for the exclusion of evidence by comparison of handwriting are (1) the danger of fraud in the selection of specimens, and (2) if admitted, their genuineness may be contested, and collateral issues introduced into the trial. These reasons do not apply against the introduction of writings conceded by the parties to be genuine as specimens, because, if either party entertains a suspicion that the writing offered is spurious, he will not concede it to be genuine; and if all the parties concede the specimen to be genuine) no collateral issue can arise upon it. Therefore, we think there should also be an exception to the general rule excluding evidence by comparison admitting writings as specimens for comparison conceded by the parties to be genuine.” (McKeone v. Barnes, 108 Mass. 344; Cochran v. Butterfield, 18 N. H. 115, 45 Am. Dec. 363; Pavey v. Pavey, 30 Ohio St. 600; Nat. Un. Bank v. Marsh, 46 Vt. 443; Gibson v. Trowbridge F. Co., 96 Ala. 357, 11 South. 365; Cohen v. Teller, 93 Pa. 123; Hyde v. Woolfolk, 1 Iowa, 159; Cunningham v. Hudson River Bank, 21 Wend. 557; Calkins v. State, 15 Ohio St. 222; Sartor v. Bolinger, 59 Tex. 411; Strother v. Lucas, 6 Pet. [U. S.] 763, 8 L. Ed. 573.)

In the ease at bar, as we have seen, the genuineness of all the letters was in dispute^ and, therefore, while it may "be conceded that in view of the testimony of the prosecuting witness, that they had been received by her, and that two of them had been the subject of conversation between her and the accused, the prosecution had a right to have the letters themselves, or at least the two which had formed such subject, admitted in evidence and read to the jury, it was not entitled to the admission of the testimony in question. Under the conflicting evidence it was the province of the jury to consider tbe letters in determining tbe question of tbe defendant’s guilt or innocence, and to give them sucb weight, in connection with all tbe other evidence, as tbe jury in its judgment deemed them entitled to receive; but the testimony in question ought to have been excluded. Considering all tbe evidence, and tbe circumstances disclosed, with tbe fact that there was no direct testimony as to tbe commission of tbe act alleged as constituting tbe offense charged, except that of tbe prosecuting witness, we are unable to say that tbe admission of tbe testimony in question was not prejudicial to tbe rights of tbe accused. Having reached sucb conclusion, it is not deemed important to discuss any other question presented. Tbe judgment must be reversed, and tbe cause remanded, with directions to tbe court below to grant a new trial.

It is so ordered.

McCABTY, J., concurs.

1 Tucker v. Kellogg, 8 Utah 11.