Pope v. Askew, 23 N.C. 16, 1 Ired. 16 (1840)

June 1840 · Supreme Court of North Carolina

23 N.C. 16, 1 Ired. 16

SAMUEL B. POPE vs. ANDREW J. ASKEW.

Testimony as to handwriting, founded on what is properly termed a comparison of hands, seems now to be generally exploded: And the only admissible testimony of handwriting is, that of a witness who has acquired a knowledge of the party’s handwriting from having seen him write, or from having had a correspondence with him upon matters of business, or from transactions between the witness and party, such as the former having paid bills of exchange for the latter, for which he has afterwards accounted.

' This was an action on the case for publishing a libel, trial at Hertford, on the last circuit, before his Honor Judge Pearson.

To prove that the defendant had written the libellous letter, the plaintiff called a witness by, the name of Alexander, who stated to the court, that he had only seen the defendant write on one occasion, when he wrote a contract between himself and the witness; that he had then noticed the manner in which the defendant handled his pen; that on another occasion he had received a note from the defendant, and observed the handwriting; and that he had thus acquired a knowledge of the general character of the defendant’s handwriting. The defendant’s counsel objected to his being examined in chief, but he was admitted by the court, and testified to the jury that from his general knowledge of the defendant’s handwriting, acquired in the manner stated to the court, he believed the letter in question was in the handw'riting of the defendant.

The plaintiff then called a Mr. Anderson, who stated to the court that he had never seen the defendant write; that he was about fifty years old, and had been a merchant from the time he came of age, and that he had paid much attention to handwriting in the course of his business, and believed that by the knowledge thus acquired, he could, by a comparison, tell any man’s handwriting: that he had once received a letter, addressed to himself, purporting to be written by the defendant; and, in consequence of its abusive character, had taken particular notice of the handwriting. Here he was asked by the defendant’s counsel, if he knew that the letter addressed to him was written by the defendant; to which he replied, that he did not, of his own knowledge.— The plaintiff’s counsel, by the permission of the court, then called another witness, who swore that the defendant had told him that he had written the letter addressed to Anderson, and sent it by a negro boy. The witness, Anderson, then stated, that from his skill in the knowledge of handwriting, the first time he ever saw the letter in question, which was at the office of the Old Dominion, in Petersburg, Ya., he was confident, from his recollection of the character of the handwriting of the letter addressed to him, that that letter, and the letter in question, were written by the same person; and, that by a subsequent comparison of the handwriting of the two letters, his belief was confirmed. This witness was then permitted by the court, although objected to by the defendant, to give evidence to the jury. He stated, that from his knowledge of the general character of the handwriting of the letter addressed to him, acquired in the manner stated to the court, he believed that the same person wrote both.

The contract between Alexander and the defendant was then shewn to the witness, and he was asked if, by comparing the contract, the letter addressed to him, and the letter in question, his skill in hand-writing would enable him to say whether they were written by the same, or by different persons; to which he answered that it would: And he was then permitted by the court, the defendant’s counsel objecting, to give evidence to the jury. He stated that upon comparing them, his skill enabled him to say, that he believed the same person had written all three.

The defendant then called three witnesses, who deposed that they were acquainted with the defendant’s handwriting, from having seen him write; and that they did not believe the letter in question was in his handwriting. One of them stated, that the letter to Anderson was not, except the signature, written by the defendant.

The case was then, after full argument on both sides, submitted to the jury, who, after retiring a short time, returned into court, and desired to take out with them the contract, the letter addressed to Anderson, and the letter in question; but this was not permitted' by the court. The jury then stated that two of the witnesses had differed in their testimony, as to whether the letter “ J,” and also the letter “ P,” were made alike in the contract and the letter addressed to Anderson; and they wished, by inspection, to judge which witness was right. The court thereupon permitted the jury, in its presence, and for this special purpose, to compare the particular letters mentioned in the papers referred to. — .telling them, at the same time, that they were not permitted to look at the other parts of the writing, lest they might decide as to the handwriting by a comparison of their own, which they had no right to do.

There was a verdict and judgment for the plaintiff, and the defendant appealed.

No counsel appeared for the defendant in this Court.

Iredell and A. Moore for the plaintiff.

Gaston, Judge.

Upon the best consideration which we have been able to give to this case, we are of opinion that a portion of the testimony offered by the plaintiff on the trial, and objected to by the defendant, was improperly received.

The fact in contestation was, whether the libel in question was written by the defendant or not. There was no direct evidence of the fact, and the plaintiff undertook to establish it by proving that the handwriting of the libel corresponded with the character of the defendant’s writing. For this purpose, he introduced, amongst others, a witness, Mr. Anderson, whose judgment, because of his skill and experience in subjects of this kind, was represented as entitled to great confidence. This witness had never seen the defendant write, and had been furnished with no means ofjudgingof the character of his handwriting, further than that he had once received a letter purporting to have been written by the defendant, and in consequence of its abusive character, had paid much attention to its handwriting. To furnish, then, a foundation for getting the judgment of this witness upon the character of defendant’s handwriting, another witness was permitted to testify that the defendant had admitted that he wrote the abusive letter to Anderson; and thereupon the latter was received to declare that, from his judgment of handwriting, the libel was written by the same person who wrote the letter. In a previous part of the trial, a witness, Mr. Alexander, had testified to the general character of the defendant’s handwriting, derived from seeing him write a contract with himself. This contract was exhibited to the witness, Anderson, and he testified that the contract and the libel were written by the same person. Now it may be, that this evidence did not prejudice the truth, or it may have actually contributed to its elucidation in the case under trial; but we feel a strong conviction that the admission of it went beyond the bounds of what has been heretofore allowed with us in disputed questions of handwriting, and apprehend that if generally allowed, it would lead to much legal inconvenience, and tend to the perversion of justice. Upon this we rest our decision.

A question very nearly resembling the present, has been recently discussed in the Court of King’s Bench in England, in the case of Doe on dem. of Mudd v. Suckermore, 5 Adol. & Ellis 703 (31 Eng. Com. Law Rep. 406.) All that learning and ingenuity can contribute to the elucidation of it, may be there discovered.

Testimony as to handwriting, founded on what is properly termed comparison of hands, seems to be now generally exploded. The testimony now received, is that of the belief of a witness as to the identity of character between the writing in question, and the exemplar of the party’s handwriting in the mind of the witness, which exemplar has been formed Up0n previous sufficient means of observation. The enquiry is, what does the law hold to be these adequate and sufficient means of observation? The rule, as heretofore observed with us, has been, that the witness must either have seen the party write, or have obtained a knowledge of the character of his writing, from a correspondence with him upon matters of business, or from transactions between them, such as having paid bills of exchange for the party for which he has afterwards accounted. 2 Star, on Evid. 372. These prima facie have been held to be sure means of acquiring knowledge — but means short of these have been deemed inadequate to afford the opportunity of knowing a man’s handwriting. It may be asked, why this precise distinction? What difference is there between the knowledge of handwriting acquired from observing writings proved to be those of a party, and observing those which the witness has himself seen written? Do not they all, if really written by him, furnish precisely the same means of judging to the witness? Waiving other answers, we say, in the first place, that it is indispensable to the uniform administration of justice that there should be some definite rule for ascertaining when the witness’s belief —for it is but belief — has been formed under such circumstances as entitle it to confidence; and whenever the rule has been once fixed, it is dangerous to depart from it because of speculative notions. But we further answer that, if it be admitted that all instruments written by a man furnish the same means of acquiring a knowledge of the character of his writing, (an admission which is not to be made without many qualifications,) yet it is first necessary that it shall be known that they were so written, before any opinion founded on them, can be entitled to the least confidence. In the cases put by the rule, the law supposes, prima facie at least, that this preliminary matter» of fact is known — but, in all other cases, it is to be proved. How is this to be done?— By testimony — direct or indirect» — .met, opposed, weakened, strengthened, repelled or established by other testimony— and this upon a number of collateral issues, of which no previous intimation had been given — embarrassing the jury, surprising the parties, and unfitted to the simplicity and distinctness which should characterise the trial of facts by the country. The case before us, is an illustration of the necessary consequences of a relaxation of the rule. The question of fact by whom the letter was written, is as fiercely contested, as the fact directly in issue upon the writing of the libel — and yet that question must be decided in the affirmative, before much of the evidence upon this ought to be considered by the jury. Nor is this answer met by the objection that, according to the rule, however strictly held, these collateral issues may, nevertheless, be introduced; for it may be, that the party whom the witness supposes that he saw write, was personated by another — or that the correspondence from which he has drawn all his knowledge, was conducted by a clerk, in the name of his principal. This is indeed possible. But the rule so restricted, does not lead to such issues; whereas, the relaxation of it renders them inevitable.

We think it unnecessary to enquire whether the comparison of the two particular letters in the contract, and in the letter to Anderson, were admissible for the special purpose mentioned, because we see no legitimate purpose for which either of these instruments was received in evidence.

The judgment must be reversed, and a venire de novo awarded.

Per Curiam. Judgment reversed.