I dissent. The defendant, an attorney at law, was convicted of a felony for having violated section 810 of the Penal Law. His crime consisted in offering in evidence in the trial of a civil action an affidavit of Edward R. Gilman which had been fraudulently "forged" or altered by inserting therein the words "the same," which words at the time he offered the paper in evidence he knew to have been forged or altered. The judgment of conviction has been unanimously affirmed by the Appellate Division, and no question of fact is presented which is reviewable in this court. The record of the case is voluminous. The trial was fair and the issues were submitted to the jury by the learned trial justice in a charge to which no exception was taken. Although the trial was protracted and every step in it was strenuously contested there is but a single circumstance that can be claimed to present an erroneous ruling. The nature of this ruling was such that, in my opinion, we are not warranted in reversing this judgment on account of it. The question at issue upon the trial was whether the defendant had inserted or caused to be inserted the words "the same" in the affidavit which he offered in evidence in the trial of a civil action. These words were of vital significance in the proof upon the trial of the civil action in which the forged affidavit was offered in evidence. It was, of course, competent for the prosecution to prove that the forged words, "the same," were written upon the defendant's typewriter. Evidence of the most convincing character was offered to prove this fact. The fact that the words "the same" in the forged or altered *Page 94 affidavit contained the identical peculiarities which appeared in the letters of these words written upon the defendant's typewriter was a strand in the cable of proof which connected this defendant with the commission of the crime. The defendant's counsel appreciated the importance of this evidence, and upon the cross-examination of the witnesses called by the prosecution attempted to show that the several defects shown to exist in the type of the defendant's typewriter were frequently found in typewriter type. The witnesses called by the prosecution had pointed out thirteen separate and distinct defects in the six letters, "t, h, e, s, a, m," which were included in the words "the same." Two of these defects were said to be variable and were disregarded by the district attorney in the question which he put to Professor Snyder. His question asked the witness to assume the existence of the eleven defects referred to and asked him to calculate the probability of the recurrence in any other typewriter of these identical eleven defects in the six letters specified. The question propounded assumed that the six typewritten letters, "t, h, e, s, a, m," possessed the defects testified to, and asked the witness whether he was able to state from mathematical calculation and by the law of mathematical probability what is the probability that each and all of the distinguishing characteristics pointed out would exist in another typewriter. The witness answered that he was able to so state and was then asked, "What were they?" and answered, "About one in four thousand millions." So far as the witness assumed merely to state what the law of mathematical probability is and the illustrations which he gave as to the operation of that law his testimony was not prejudicial to the defendant. The only respect in which it is possible to claim that this testimony could be regarded as prejudicial is that part of it which related to the answer of the witness that he could state what the probability was that these precise defects would be found to recur *Page 95 in another typewriter and that this probability was one in four thousand millions. This testimony seems to me to have been unnecessary. The district attorney could have argued to the jury as a matter of common knowledge that if they found that the eleven distinct defects did exist in the six letters referred to it was exceedingly improbable that these precise eleven defects would be found to be present in any other typewriter, and that inasmuch as those six letters in the Gilman affidavit did contain these eleven defects, and these precise defects were also found present in the standards written by the defendant's typewriter, it was exceedingly probable that these six letters in the affidavit of Gilman were written on the same typewriter that wrote the standards. Common sense at once recognizes how remote is the probability that all of these defects should recur in these six identical letters in any other typewriter. Indeed, if the district attorney, basing his argument upon matters of common knowledge and the general perception of all men, had pointed out that there was not one chance in four thousand millions that these identical defects would be found in these identical six letters of another typewriter, he would, I think, have been within his rights. Substantially the same statement did not become prejudicial because it is made by one learned in the higher mathematics. In common speech men would say that there was only a remote chance that these precise defects would recur in another typewriter. This is what any intelligent person would have concluded without the aid of expert testimony. A reference to one chance in four thousand millions would denote in the juror's mind simply extreme improbability. I think that this is all that the jurors could have understood from this testimony. The whole significance of the testimony was merely to indicate that the probability was remote and the testimony of the expert, if improperly received, was not, in my opinion, prejudicial error. While there are *Page 96 doubtless many respects in which the principles of science may, with advantage, be applied to judicial proof, as has been effectively shown in the progress made in effecting identification by means of finger prints, yet courts must be cautious in receiving such proof and cannot sanction it until its accuracy has been fully tested and vindicated by experience. Certainty can only be attained in the light of perfect knowledge which it is often impossible to attain, and the law allows in such cases a consideration of that which is probable. That calculations based upon sufficient data and correctly made will bring us to a more correct estimate of probability than conjecture or general perception is doubtless true, but it is equally clear that the calculations must be based upon the assumption that all the data of the problem have been stated. There have been many interesting discussions upon this subject by scientific writers and nowhere have the difficulties of the application of this theory been more clearly pointed out than by these writers. Thus Professor Jevons in his "Principles of Science" says: "The theory of probability, though undoubtedly true, requires very careful application. Not only is it a branch of mathematics in which errors are frequently committed, but it is a matter of great difficulty in many cases to be sure that the formula correctly states the data of the problem." To illustrate the liability to error in the application of this theory, the same author gives many instances pointing out how often the most acute and powerful intellects have gone astray in the calculation of probability. If, therefore, the evidence in this case had been of a material nature and such as would probably have served to mislead the jury, I should hesitate to cast a vote which, in the present state of mathematical science, would sanction the reception of such evidence as to past transactions. In the view I take of this case, it is not necessary to sanction this kind of evidence to sustain the judgment appealed from. The whole incident was a relatively unimportant feature of a long trial. While several *Page 97 pages of the record are devoted to the examination of the witness Snyder, a large part of these pages consists in the objections and arguments of counsel. The testimony itself was very brief. The proof that the words "the same" were forged did not at all depend upon the opinion of experts. With the exception of the witness Snyder, the trial court limited the experts upon typewriting to describing the conditions of the type and did not allow them to testify as to their opinions. In determining as to the materiality of the testimony of Professor Snyder, it must be borne in mind that the fact that the words "the same" in the forged affidavit were written upon defendant's typewriter was proved satisfactorily by other evidence than that of Professor Snyder. It was also shown that the body of the Gilman affidavit was written upon a Remington typewriter in small pica type, whereas the inserted words "the same" were written upon an Underwood typewriter and were in medium Roman type. It was also shown that defendant's typewriter was an Underwood machine with medium Roman type, and that the words "the same" when written upon that machine corresponded exactly with the forged words in the Gilman affidavit. In addition to this a carbon copy of the original affidavit was introduced which did not contain the forged words, and it was proved that when the original affidavit was signed the words "the same" were not contained in it. The defendant's opportunity and motive to commit the crime were clearly proved, as also was the fact that, after he had been charged with this crime, he endeavored to obtain a typewriter which would reproduce the same defects as the Underwood machine in his office upon which the standards had been written. It is not necessary to review all the other circumstances tending to establish the defendant's guilt. The unanimous affirmance by the Appellate Division of the judgment entered upon the verdict of the jury and the convincing character of this testimony are circumstances *Page 98 that indicate that the error committed in the reception of Professor Snyder's testimony was not prejudicial. While it is true as pointed out in the opinion of Judge MILLER that the defendant's counsel protested vigorously against the admission of the evidence of Professor Snyder, that fact, in no way, indicates the importance of the evidence offered, or that it was improper or prejudicial, because a review of the record will disclose that the defendant's counsel made vigorous objection to a very large part of all the testimony that was introduced in this case. If vigorous objection by defendant's counsel is to be regarded as indicative of importance and materiality, the trial court might as well have directed a verdict of acquittal at the outset. Indeed as one reads this record and considers the obstacles thrown in the way of the presentation of perfectly proper proof, it is remarkable that the facts were so fully developed. Nothing but the great care and patience of the learned trial justice made this possible. I agree with my brother MILLER that "in our system of jurisprudence the determination of the defendant's guilt or innocence is the sole province of the jury." In this case the jury, upon evidence conceded to be sufficient to justify their verdict — apart from the evidence of the witness Snyder — have found the defendant guilty, and the Appellate Division, who are charged with the duty of reviewing the facts, have unanimously concluded that the verdict was sustained by the evidence. Nor do I advocate the assumption by the courts of any "arbitrary power," in refusing to concur in the reversal of this just verdict for what seems to me to be the trivial cause assigned. There is a wide difference between the exercise of "arbitrary power" by the courts and the refusal of the courts to allow the great constitutional guarantees of life, liberty and property to be used as means by which criminals are permitted to cheat justice. I regret that judicial tribunals have not always observed the difference. There is no law of this *Page 99 state requiring the court to reverse a judgment obtained after a fair trial because of immaterial error. In disregarding such an error, we do not convict the defendant, but merely refrain from justifying the reproach which the reversal of judgments in criminal cases upon unsubstantial errors has cast upon the law of new trials. The view expressed in the opinion of Judge MILLER seems to me to involve the application of the old Exchequer rule that regarded the making of any error as conferring upon the defendant the "legal right" to a new trial. My own view as to this matter is expressed in the following quotation from Professor Wigmore: "As to this theory of legal right, it may be said in reply that no man has a legal right to have his cause wrongly decided, for that is what this `right' comes to. He has indeed a legal right to a jury trial; and he has a right to a fair trial in general. But these are ends in themselves, because the one by constitution and the other by common sense of justice becomes a paramount object. But none can justify the exaltation of the ordinary rules of evidence, which are mere instruments of investigation, into an end in themselves. As well might a gardener cut down a thriving vine because his henchman has used a hoe instead of a spade in planting it; or a farmer bring valuable bantams to the block because they were hatched by a meddlesome duck instead of by their lawful parent. A glance at common affairs will awaken us to the intrinsic absurdity of the theory of `legal right.'" (1 Wigmore on Ev. p. 72.) The suggestion that "the trend of popular thought" invites courts to assume arbitrary power seems to me to be as irrelevant as I believe it to be inaccurate. In any event it is as foreign to the merits of this case as are the references to the observance of "forms of law" in order to preserve "the very essence of our boasted freedom." The defendant has had a fair trial by a jury. All the forms of law have been observed with strictness and impartiality. He has had the benefit of an appeal which *Page 100 has been decided adversely to him. Notwithstanding all this it is now proposed to reverse the judgment because of an unsubstantial error in the admission of testimony. To this practice I am unwilling to give my consent. A review of the whole record shows that upon the trial the testimony of Professor Snyder amounted to very little, and it was not even deemed worthy of mention by the learned trial justice in his admirable charge to the jury. But now, as is often the case, when the defendant has been convicted, this trivial circumstance is seized upon, elaborated and embellished and presented to this court, as if it were the controlling feature of the whole trial instead of being, as I think it was, a comparatively unimportant incident which the trial justice properly regarded as unworthy of being referred to in his charge. We ought not to forget that in the last analysis the great purpose of a criminal trial is to determine whether the defendant is guilty or innocent. When the defendant's guilt is proved, he should not be allowed to escape the consequences of his act because of a technical error in the course of a long trial.
The evidence satisfactorily proves the guilt of the defendant, and, except for the admission of the evidence of Professor Snyder, the trial was free from legal error. The error involved in the reception of that evidence was not, in my opinion, of such a character as to justify us in reversing the judgment.
I vote in favor of the affirmance of the judgment.
WILLARD BARTLETT, Ch. J., CHASE, COLLIN and CARDOZO, JJ., concur with HOGAN and MILLER, JJ.; SEABURY, J., reads dissenting opinion.
Judgment reversed, etc. *Page 101