In the case of State v. Givens, 5 Ala. 754, it was declared, that "a witness required to testify upon the subject, must possess a previous knowledge, acquired by having seen the party write, or in some other legal manner."

In the case of Hopper v. Ashley, 15 Ala. 465, the witness answered, "that he had seen the plaintiff write once, but he did not know his handwriting." The court informed the witness "that he was not required to swear positively as to the writing, but if, from having seen the plaintiff write once or oftener, he believed he was acquainted with his handwriting, or would recognize it, then he was competent, and bound to give his opinion." Here the witness was held incompetent.

The case of Moon v. Crowder, 72 Ala. 88, does not militate against these authorities. The declaration "that a witness who has seen the party write may express his opinion,” referred to the facts of the case which appeared in the record, though not reported in the opinion, and which tended to prove a previous knowledge of the handwriting, acquired by having seen the party write. The more recent case of Griffin v. State, 90 Ala. 596, fully declared the same rule, as to the competency of a witness to give an opinion upon handwriting.

to

The fact that the witnesses saw the defendant write is enough carry his testimony as to the genuineness of the signature to the jury, they to give it such weight as they think it entitled to. Besides, the witness had corresponded with the defendant and re. ceived letters from him. But if the admission of the evidence was erroneous it did no harm, since the genuineness of the same signature was proved by Andrew Froitzheim, Jr., whose competency was abundantly shown. People v. Petmecky, 2 N. Y. Crim. Rep. 450.

A person may, by and through a correspondence with another, become so well acquainted with his handwriting as to be competent to testify as to the genuineness of a writing claimed to be his Abbott, Trial Ev. 393; Roscoe, Crim. Ev. 174, 175; 1 Greenl. Ev. 577; Rogers v. Ritter, 79 U. S. 12 Wall. 317, 20 L. ed. 417.

A witness who shows himself to be acquainted with another's handwriting may, before or at the trial, refer to papers in his possession which he knows to be in the handwriting of the other, to refresh his memory before testifying. Abbott, Trial Ev. 395; Redford v. Peggy, 6 Rand. (Va.) 316; Smith v. Walton, 8 Gill, 77; McNair v. Com. 26 Pa. 388.

It is a well settled rule in Ohio that, where the genuineness of handwriting is involved, well attested standards of the hand of the person whose writing is in question may be introduced for the purpose of comparison with that which is disputed; and that this comparison may be made, not only by persons who have seen the party write, or have acquired a knowledge of his hand by corresponding or transacting business with him, but also by persons skilled in handwriting, such as are usually called experts. Bragg v. Colwell, 19 Ohio St. 407; Pavey v. Pavey, 30 Ohio St. 600; Calkins v. State, 14 Ohio St. 222.

The rule established in South Carolina is that while comparison of handwriting is inadmissible as an original means of ascertaining the genuineness of a signature or other writing, yet it may be admitted in aid of doubtful proof. State v. Ezekiel, 33 S. C.

115.

$74. Miscellaneous Authorities Examined.-A witness whose knowledge of a party's handwriting has been obtained by seeing him write for the purpose of showing his true manner of writing to the witness, with a view to his testifying, will not be permitted to testify his belief as to the genuineness of the signature in question. Reese v. Reese, 90 Pa. 89, 35 Am. Rep. 634, quoting Lord Kenyon's saying in Stranger v. Searle, 1 Esp. 14: "The defendant might write differently from his common mode of writing his name, through design."

In King v. Donahue, 110 Mass. 155, 14 Am. Rep. 589, where a general rule in relation to standards of comparison by the jury much less strict than in other jurisdictions, it was held that a party was not entitled to write her signature in the presence of the jury for the purpose of its being compared with a signature purporting to be hers in evidence, the genuineness of which she denied. It was said: "The rule however seems to be that a signature made for the occasion, post litem motam, and for use at the trial, ought not to be taken as a standard of genuineness, and that the jury should not be troubled with the additional issue or question whether the signature so offered is written in a constrained and forced manner or not."

The common law rule in England and several of the states does not allow the proof of handwriting by comparison of hands as liberally as in Maine, Massachusetts and Connecticut, (Moore v. United States, 91 U. S. 273, 23 L. ed. 347) yet it has always been

the practice in these states to introduce other writings, admitted or proved to be genuine, whether relative to the issue or not, for the purpose of comparison of the handwriting. The object is to enable the court and jury, by an examination and comparison of the standard with the writing in controversy, to determine whether the latter is or is not genuine. Hammond's Case, 2 Me. 35, 11 Am. Dec. 39; Chandler v. Le Barron, 45 Me. 536; Woodman v. Dana, 52 Me. 13; Homer v. Wallis, 11 Mass. 309, 6 Am. Dec. 169; Moody v. Rowell, 17 Pick. 490, 28 Am. Dec. 317; Richardson v. Newcomb, 21 Pick. 315; Lyon v. Lyman, 9 Conn. 55.

"For this purpose," observes the court in Woodman v. Dana, supra, "the specimens of handwriting, not otherwise pertinent to the issue, but admitted and proved to be genuine, may be introduced before the court and jury, as a standard for comparison by which to test the genuineness of the writing in controversy, for this purpose such standard specimens may be compared by experts in the presence of the jury, and such experts are permitted to express an opinion as to the fact whether the controverted paper be genuine or not, founded upon such comparison." State v. Thompson, 80 Me. 194.

It is not allowable, upon an issue as to handwriting, to put in evidence papers, otherwise irrelevant, merely for the purpose of enabling the jury to institute a comparison of the writing. The statute of the state of New York, permitting a comparison of writings for the purpose of determining handwriting, has no effect upon criminal proceedings in the courts of the United States. In those courts the extent of the rule is to permit the jury to compare writings lawfully in evidence for some other purpose. It has never been permitted to introduce writings for the mere purpose of enabling the jury to institute a comparison of writings. To permit the practice here sought to be established would be to permit the defendant to make evidence for himself. United States v. Jones, 10 Fed. Rep. 469.

In Bronner v. Loomis, 14 Hun, 341, the action was on a promissory note claimed by the plaintiff to have been made by the defendant, who interposed the defense that her signature thereto was a forgery. The defendant was examined as a witness in her own behalf, and on her cross-examination she, at the request of the plaintiff, wrote her name on a slip of paper which was received in evidence on the plaintiff's offer and over the

defendant's objection, and it was held to be competent evidence. The inquiry was, whether the signature in question was or was not that of the witness who had testified on the direct examination that it was not. In Chandler v. De Barron, 45 Me. 534, it was held that a writing made in the presence of a court and jury by the party whose signature is in dispute, may be submitted to the jury for the purpose of comparison.

In some jurisdictions without statute, and in New York and Iowa by recent statute, any writing proved to the satisfaction of the court, or admitted to be genuine, may be used as a standard of comparison; the opinions of experts may be taken on the comparison, and the standards may be submitted for inspection and comparison by the jury. Abbott, Trial Brief, § 437, citing Tyler v. Todd, 36 Conn. 218; Burdick v. Hunt, 43 Ind. 381; Macomber v. Scott, 10 Kan. 335; Com. v. Andrews, 143 Mass. 23; State v. Thompson, 80 Me. 194; Morrison v. Porter, 35 Minn. 425, 59 Am. Rep. 331; Wilson v. Beauchamp, 50 Miss. 24; Yeomans v. Petty, 40 N. J. Eq. 495; State v. Hastings, 53 N. H. 453; Bell v. Brewster, 44 Ohio St. 690; Travis v. Brown, 43 Pa. 9; Smyth v. Caswell, 67 Tex. 567; Kennedy v. Upshaw, 64 Tex. 411; Durnell v. Sowden, 5 Utah, 216; Adams v. Field, 21 Vt. 256; Rowell v. Fuller, 59 Vt. 688; N. Y. Laws 1880, chap. 36; Iowa Code, § 3655; State v. Calkins, 73 Iowa, 128.

be

A writing known to be in the handwriting of a party may introduced for the purpose of comparison. Georgia M. M. L. Ins. Co. v. Gibson, 52 Ga. 640; Chance v. Indianapolis & W. G. R. Co. 32 Ind. 472; Macomber v. Scott, 10 Kan. 336; Page v. Homans, 14 Me. 478; Sweetser v. Lowell, 33 Me. 446; Vinton v. Peck, 14 Mich. 295; Yates v. Yates, 76 N. C. 143; Murphy v. Hagerman, Wright, 293; McCorkle v. Binns, 5 Binn. 340; State v. Hopkins, 50 Vt. 316; Bird v. Miller, 1 McMull. L. 123.

75. Views of Mr. Wills.-"Evidence of similitude of handwriting by the comparison of controverted writing with the admitted or proved writing of the party, made by a witness who has never seen the party write, nor has any knowledge of his handwriting, and who arrives at the inference that it is his handwriting because it is like some other which is so, is a mode of proof which has been much lauded by writers on the civil law, and is commonly admitted in those countries whose jurisprudence is founded on that system; the comparison being made by pro

fessional experts appointed by the court or agreed upon by the parties, under many restrictions for securing the genuineness of the writings which are to form the standard of comparison. Comparison of handwriting appears also to be a recognized mode of proof in some of the American states, whose judicial systems are generally founded on our own. Such evidence is in general inadmissible in this country, though the leaning of text-writers of authority appears to have been rather in favor of the principle of its admissibility; the only admitted exceptions are where the writing acknowledged to be genuine is already in evidence in the cause, or the disputed writing is in ancient writing. In these excepted cases, the evidence is admitted, it is said, of necessity, in the former case because it is not possible to prevent the jury from making such comparison, and therefore it is best, as was remarked by Lord Denman, for the court to enter with the jury into that inquiry, and do the best it can under circumstances which cannot be helped; in the latter, because from the lapse of time no living person can have any knowledge of the handwriting from his own observation, and because in ancient documents it often becomes a pure question of skill, the character of the handwriting varying with the age, and the discrimination of it being materially assisted by antiquarian researches." Wills, Circ. Ev. pp. 132-134.

For further review of this subject see 1 Rice, Civil Evidence, chap. 9.