I dissent in toto from the opinion pronounced by the majority of the court in this case, and will give my reasons therefor, briefly as I may.
The case is one of great public importance, as affecting the security of life, and demands the closest scrutiny. A homicide, unexampled in the annals of any country, has been committed in our largest city, under circumstances of the greatest atrocity, and, under the ruling of the court, the guilty party may go “ unwhipt of justice.”
But be the guilt of the prisoner of the deepest dye, he is entitled to a fair and impartial trial, and to have the rules of evidence and principles of law properly applied to him, but to no more. He is entitled to all those safeguards, and those only, the beneficence of the law has thrown around the accused, and a full observance of all the necessary and required forms. A serious departure from them, will always justify the interposition of this court, and in a proper case, it will never be invoked in vain.
Could I, for one moment, believe the prisoner had not received a fair and impartial trial, or that the rules of evidence or the principles of law had been improperly applied and enforced, and the required forms disregarded to his prejudice, I should not hesitate to set aside the verdict rendered against him.
The majority of the court, to whose judgment I ought, perhaps, to defer, are of the opinion that such rules and principles have been violated, and they have, as they should do, set aside the verdict, and granted a new trial, and the reasons therefor have been made public. As I dissent from the opinion, it is but respectful that I should give my reasons, although it can produce no practical result. The fiat has gone forth, and the law pronounced for all future time, in like cases, which may hereafter occur.
The opinion of the court is placed mainly on the ground of admitting evidence of comparison of hand-writing, to rebut testimony the prisoner introduced, and which he is supposed to have manufactured, and the separation of several of the jurors at separate times, apart from the officer, but before the case was finally committed to them, and without any proof, or well-founded suspicion even, that the prisoner was prejudiced thereby, together with a half-way objection to certain physical experiments, made with hooks and cords, in the presence of the jury.
As to the first, the court say, “ The receipt signed by the deceased, and the letter written by the prisoner, for the purpose of proving, by a comparison of the hand-writing of the two, with the letter produced by the prisoner on the trial, as having-been written by the deceased, was not written by her, but was written by the prisoner, was in violation of a well-settled rule of law, and should not have been admitted. The rule that the genuineness of hand-writing cannot be proved or disproved, by allowing the jury to compare it with hand-writing of the party, proved or admitted to be genuine, obtains in criminal as well as in civil cases. The genuineness of a promissory note could not be so proved, though the matter in controversy did not amount to five dollars. Certainly, then, when the life of a human being may depend on the result, the rule of law cannot be less strict. We shall not stop now to discuss the propriety or reason of the rule. It is sufficient that it is well settled, and universally observed.”
I will undertake to show, and I think successfully, that the rule of evidence here treated of, is not as stated—is not “ well settled,” nor “ universally observed,” and if there be no settled rule on the subject, that the one adopted by the court is not the most reasonable and practical.
It is one of the fundamental rules of evidence, that the best evidence of which the nature of the case or the issue is susceptible, must be produced. The paper, signed by the deceased, was proved to be her hand-writing. About this, there was no dispute. The letter produced by the prisoner, as having been written by her, was introduced by himself, was important to his defense, and it was his business to prove it. No one proved it to be in the handwriting of the deceased—there was much testimony on the point, but nothing satisfactory elicited, and it was submitted to the jury to determine from the testimony, and the genuine writing, what the probabilities were. So far as this fact was concerned, they were to weigh the evidence, and decide accordingly. Evidence of hand-writing, like all probable evidence, admits of every possible degree, from the lowest presumption to the highest moral certainty, and affects the jury accordingly. All evidence of hand-writing, except when the witness has seen the disputed document actually written, is, in its nature, comparison. It is only the belief which a witness entertains, upon comparing the writing in question with an abstract picture in his mind, derived from some previous knowledge, and he must, upon the moment, apply that picture or examplar, to the particular writing in question.
The witness who established the hand-writing of the deceased, could refer to that paper when interrogated as to the genuineness of the letter, and he had a right to compare it in his own mind, with the genuine hand-writing, and then speak as to his belief. So had the jury a right, the genuine document being before them, to cherish or reject any belief thus created. It was a collateral matter, and though in a capital case, the jury were not required to be satisfied beyond a reasonable doubt of the truth of every collateral fact that might arise. Upon such, they could weigh the evidence, but upon the whole case, as to the guilt of the accused, they must have no doubt. The question for the jury was,—what is the probability under the evidence ? Did the deceased write this letter ? It was not a prosecution for forging the letter, but it was a collateral matter, introduced by the prisoner himself, to be disposed of in the same way such facts are always disposed of by courts and juries. The interest the prisoner had in the letter, was one consideration for the jury, and unless he furnished proof of its genuineness, the jury had a right to decide, from the proofs submitted, on its true character, and on the purpose for which it was introduced. It is said to be a general principle, that a witness shall not be allowed to state to a jury, the conclusion or belief of his mind, as to apiece of hand-writing being that of a particular individual, when that conclusion is made for the purpose of the issue, by means of a comparison of the disputed writing with another written specimen of the same individual, produced in court. The reason assigned for this sometimes is, that unless a jury can read, they would be unable to institute a comparison, or judge of the supposed resemblance. A second reason is, that this species of evidence might cause inconvenience, by raising numerous collateral issues, and often come by surprise against the party to be affected by it.
As to the first reason, it is admitted to be too narrow for a rule of such general application.
As to the second, it may be observed, that the issue was presented by the prisoner himself, and he could not complain of surprise.
The strongest reason for rejecting such a comparison is, that the writings intended as specimens to be compared with the disputed paper, would be brought together by a party to the suit, who is interested in selecting such writings only as may best serve Ms purpose ; and that they are not likely, therefore, to exhibit a fair specimen of the general character of handwriting. 2 Phil. Ev. 255. But neither of the reasons are approved by Philips, or other respectable writers on the law of evidence.
It is, certainly, an inconsistency in the rules of evidence, to allow a witness to compare, in his mind, the disputed paper, with the impression, which'a slight and transient view of writings may have made upon his memory, and on the other hand, not permit the jury to compare it with writings, proved to be authentic, present in court, and open for inspection.
To this objection, which all must see is a valid one, the only-answer is, that before suggested, namely, that the writings which are produced as specimens, having been selected by an interested party, to serve a present purpose, may be open to suspicion, and liable to the imputation of contrivance. Phil. Ev. 255.
This is certainly no good answer to the objection, for if they be open to suspicion and liable to the imputation of contrivance, will not the jury, with their argus eyes, and attentive ears, discover it ? Why keep it from the scrutiny of a power, in which we glory—in which we repose so much confidence, and on which, courts and the profession are prone to indulge in so much adulation ? Can there be any harm or danger in subjecting to the test of a jury, papers open to suspicion and obnoxious to the charge of contrivance ? If this was a reason, there is constantly evidence open to the same objection. Other specimens might be exhibited by the opposite party, and means afforded for getting at the truth.
But this rule has been very considerably relaxed, as the same author tells us. Upon a question respecting the identity of hand-writing, the jury may be allowed to take other papers, which have been proved to be the hand-writing of the party whose hand-writing is disputed, provided they are a part of the proofs in the cause, and may compare them with the disputed writing, for the purpose of forming their opinion, whether the disputed writing is genuine. Ib. 256. The reason given is, that the papers being parts of the proofs in the cause, are free from all suspicion of undue selection.
Now I submit, if the paper offered in this cause, is free from the suspicion of undue selection, why should it not go to the jury for the purpose of comparison ? Can it be alleged that it is tainted with this suspicion ? and if it is, where is the danger of submitting it to the jury ?
It is said to be an established qualification of this last rule, that documents irrelevant to the issues on the record, are not to be received in evidence on a trial, for the mere purpose of enabling a jury to institute such a comparison. But the circumstances of this case, show no such state of facts. The question was, is the letter produced by the prisoner, purporting to have been written by the deceased, her genuine hand-writing ? No witness proved it was—some one or more thought it resembled her hand-writing. But before the question of the letter had been distinctly presented, the receipt signed by the deceased had been introduced in evidence, by the prosecution. It was not admitted, as alleged in the opinion of the court, for the mere purpose of instituting a comparison of hands, but as a part of the res gesta.
A portion of the criminative evidence against the prisoner, consisted in the alleged fact, that the deceased brought with her to the prisoner’s room, a considerable amount of money, which was actually deposited to the prisoner’s credit, the day after she reached his room, and but three days before her death. To aid the jury in determining' whether the amount so brought by her, corresponded with the credit at the bank, the receipt in question, for money paid to the deceased a day or two before, became pertinent and competent evidence.
It was admitted, as a part of the evidence of the witness who had paid her the money, and being in her hand-writing, was the most authoritative evidence of the fact. If the question, touching the genuineness of the letter, had not been raised at all, this receipt would have been introduced to the jury, as part of the res gesta, and for a legitimate purpose. When the question of the genuineness of the letter was subsequently raised, then it was, that the witnesses were asked, if the disputed letter was in the same hand-writing. And every witness examined on this point, was an expert. It is, therefore, apparent that this evidence is supported by authority. 2 Phil. Ev. 256.
But I insist, that it was admissible, on the clearest principles of reason and authority, for the purpose of instituting a comparison of hands, by experts, and that it was not necessary that the evidence should have been in the case, for any purpose except that of making the comparison.
It has been already stated, that a witness who testifies on the subject of hand-writing, gives, at best, but the result of a mental comparison, made by him, of the disputed writing with that which he has seen, and the impression of which remains on his memory. What difference could it make, if this comparison was carried on in the mind, which the rules of evidence allow, or actually made in the presence of the court and jury ? Is speaking from an impression made on the mind, more convincing, more worthy of regard and belief, than a present conviction, produced by actual comparison ?
Starkie says, (2 Stark. Ev. 516), the most satisfactory reason for excluding comparison of hands is, that if such comparison was allowed, it would open the door to the admission of a great deal of collateral evidence, which might go to a very inconvenient length.
This reason does not seem to me, either powerful or convincing. The examination is always in the power of the court to be arrested, when proceeding to an inconvenient length. But the reason does not apply here, for the genuineness of one single document only, was in question, and that produced by the prisoner himself. Starkie, however, leans in favor of the evidence.
In Allesbrook v. Roach, 1 Esp. R. 351, sittings after the term at Winchester, before Lord Kenyon, that distinguished judge said, on the comparison of hands: “ Some judges have doubted of the policy of that rule of evidence, respecting the allowing of the jury to judge by comparison of hands, because often at a distance from the metropolis, the jury are composed of illiterate men, incapable of drawing proper conclusions from such evidence. Eor my part, I have been always inclined to admit it, and shall do so in this case.”
A distinction seems to be taken by the learned judge, when a witness is called to speak from comparison of hands. He is held not to be admissible, (ib. Stranger v. Searle, 14, per Lord Kenyon,) but the jury can be allowed to make the comparison, and no good reason has ever .been assigned, or can be assigned against it. The jury want evidence to satisfy them of the probable truth of a fact, and if the best evidence of which the case or the issue is susceptible is produced, the requirement of the law is fulfilled.
In more recent English cases the doctrine is thus laid down— as I have already stated—that the court or jury may compare two documents together, when properly in evidence, and from that comparison-, form a judgment upon the genuineness of the hand-writing. 4 Phil. Ev., Cowen and Hill’s notes, part 2, page 478. This being so, why is it not as reasonable, when a doubtful paper is sought to be made evidence, that the opposite party should show by a genuine paper, and by comparison of the disputed paper with it, that the probability is against its genuineness. The evidence may not be conclusive by any means, yet it affords the jury some data on which they can make up a satisfactory opinion for themselves.
I am of the opinion, that were the paper the ground of the action, as upon an indictment for forging it, the evidence would be admissible, although in criminal prosecutions of that nature, the jury must be satisfied beyond a reasonable doubt of the truth of the forgery. They cannot in such case weigh the evidence and find their verdict on probabilities. But the purposes of the proof in this case were wholly different. The question was, is this letter the genuine letter of the deceased. This is met by an exhibition and proof of her genuine hand-writing, and by the testimony of witnesses who fail to identify the letter, some of whom, on comparison, condemn it. They are submitted to the jury for the purpose of -satisfying them on that point, and they condemn it. The theory of the prosecution was, that the letter was a forgery got up by the prisoner, in anticipation of the occasion, and the prosecution were entitled to use all the means at their command to raise the presumption that it was a forgery, and none were more proper than by the production of a genuine'paper, and comparing the forged one with it.
The rule on this subject is by no means uniform in the several States of the Union.
In Pennsylvania, in the case of Mc Corkle v. Binns, 5 Binney, 349, after evidence was given in support of a writing, it was permitted to corroborate by comparison with an acknowledged '-writing of the party. In Farmers’ Bank of Lancaster v. Whiteliill, 10 Serg. and Rawle, 112, the court in discussing the ireasons above given, for the rule, consider them all unsound and unsatisfactory. That court says, it is more satisfactory to submit a genuine paper, as a standard, and let the jury compare that with the paper' in question, and judge of the similitude, ■than the evidence continually received of allowing a witness who has seen the party write once to compare the disputed paper •with the feeble impression and transient view the writing may ’have made upon his memory. This is by no zneans so well calculated to ascertain the truth, the object of all evidence, as to suffer the jury to compare the paper with writings proved to be authentic present in court and open for inspection.
The court cites the case of Osborne v. Hosier, 6 Modern, 147, where one of the subscribing witnesses on the issue of non est factum, gave full evidence of sealing and delivery. The other swore it was very like his hand, but not his. The reputation of both was good, and Holt, C. J., ordered them to write their names, and thereupon left it to the jury, who found for the plaintiff. See also Baker v. Haines, 6 Wharton, 284. On an indictment for forgery, especially where the writing is found in the prisoner’s possession, comparison of hands may be permitted. Pennsylvania v. McKee, Addison’s Rep. 33.
In North Carolina, comparison of hands is admissible^ as a circumstance in aid of doubtful proof, but per se, and without other proof, it is not. Bowman v. Plunkett, 2 McCord, 518.
In New Hampshire, the doctrine of the Pennsylvania courts is established. Myers v. Toscan, 3 N. H. R. 47. So in Massachusetts. Hall v. Huse, 10 Mass. R. 39; Homer s. Wallis, 11 Mass. R. 308.
In Kentucky, it is held that such proof is inadmissible except in the case of ancient writings, and in aid in corroboration of other proof. But alone, and without other proof, the general rule is not to admit it. Woodward v. Spiller, 1 Dana, 179.
In Maine, it is held admissible. Hammond’s case, 2 Greenl. R. 33. So in Connecticut. The State v. Nettleton, for forgery, 1 Root, 308; and in Lyon v. Lyman, 9 Conn. R. 55; and no distinction is made between civil and criminal cases. And in Pennsylvania. Commonwealths. Smith, 6 Serg. and Rawle, 571. And so in Rhode Island. Freelove v. Fenner, 2 Gallison, 170.
In Louisiana, the doctrine on this subject rests on their code of practice, and proof by comparison is allowed. In 2 McNally’s Evidence, 394, it is said that in proving the hand-writing of a defendant, there is no distinction between that which is legal evidence in a civil action, and that which is legal evidence in a criminal prosecution. The rule adopted by this court, then, cannot be said to be “ universally observed.”
But this review of authorities was unnecessary, inasmuch as this court, in the case of Pate s. The People, 3 Gilm. R. 659, declared the rule to be as I have stated it.
That was an indictment for forging a receipt, and a contract for the conveyance of a tract of land. On the trial, one Phillips, an expert, who had never seen the party write, was called to give his opinion upon the papers produced, whether they had been altered or not from the originals.
The first error assigned was in receiving the testimony of Phillips. Treat, J., in delivering the opinion of the court, says, “ A bare reference to the testimony which he gave and the object for which it was introduced, will clearly show there was no valid objection to it. Randall the prosecuting witness testified that the receipt and contract described in the indictment, were never executed by him, and he proceeded to point out instances wherein the style of writing and spelling differed from his own. For the purpose of contradicting him, the prisoner introduced other papers, written and signed by Randall, which corresponded in these particulars with the documents alleged to be forged. The prosecution then had the undoubted right to rebut this testimony and sustain Randall. A legitimate way of doing it was by showing that the papers introduced by •the prisoner and which by the evidence had been traced to his possession previous to the trial, were originally written as stated by Randall, but had since been made to resemble the forged writings by alterations and erasures. Phillips was placed on the stand for the purpose of examining them critically, and then expressing his opinion to the jury, whether there had been such erasures or alterations. His conclusion was that erasures had been made in the particular instances pointed out by Randall. It had been the business of the witness for many years, as an officer'of a bank, to examine papers with a view of detecting alterations and erasures, and ascertaining spurious from genuine writings and signatures. He was therefore a person skilled in the matters concerning which he was called to give testimony, and as such, was competent to express his opinion to the jury.
“ It was insisted on the argument, that the question whether there had been erasures, was one to be determined by the jury on an inspection of "the papers, without the aid of other testimony. It can hardly be supposed that the jurors were as competent to form a correct opinion on the subject, as a witness peculiarly qualified by years of practical experience. Erasures might be easily discovered and pointed out' by such a witness, which would otherwise escape the observation of men unaccustomed to detecting them. The court was right in allowing the minds of the jury to be enlightened by the opinion of a witness possessing this superior knowledge.”
This ruling, I submit, covers the whole ground for which I contend. Here is comparison of hands by an expert who had never seen either party write, and it was right and proper that the minds of the jury should be “ enlightened ” by his opinion.
Upon the other point of physical experiments having been made in view of the jury, in the absence of the court, and also in the presence of the court, I am well satisfied there was no impropriety in it. The great object of testimony is to get at facts, and it matters not by what avenue they reach the mind of a jury, whether by the eye or the ear. The experiments involved no question of science or skill, and the jury might as well see them with their own eyes, as to have a detail of them by witnesses when made out of their sight. About the propriety of this mode of getting facts there is no question. Vaughn v. The State of Mississippi, 3 Smead & Mar. R. 555 ; Colt v. The People, 3 Hill R. 437, note (a), and other cases referred to on the argument. Such experiments, properly conducted, afford evidence of the most satisfactory and conclusive nature.
As to the irregularities in permitting several of the jurors, each one by himself, to separate from their fellows for a few minutes, it may be admitted, it was irregular so to do, and the officer should be punished for suffering it. But such separation, under the circumstances detailed in the record ought not to be held as vitiating the verdict. There should be some proof, some reasonable suspicion at least, that such separation was to the prejudice of the prisoner.
The case of The State y. John Tilghman, on trial for murder, reported in 11 Iredell N. C. R. 513, is a very strong case to show that very great irregularities on the part of a jury, are not compulsory bn the court to set aside a verdict, and tho’ going perhaps too far, furnishes strong evidence of the unwillingness to disturb a verdict.
In Smith v. Thompson, 1 Cowen R. 221, where two jurors, after the jury retired to consider of their verdict, separated from their fellows, and were gone some hours, but returned and joined in the verdict, the court refused to set aside the verdict, there appearing to have been no probability of abuse. In all the cases I have examined, and they are numerous it is settled, that in order to set aside a verdict on the ground of the separation of the jury, there must be some suspicion of abuse. See Beebe v. The People, 5 Hill R. 32.
There is not the slightest imputation upon any one of the jurors who separated in this case. In passing their houses, in company with the sheriff some one or more went in, and were out again immediately. This was before the trial closed. They had not retired to consider of their verdict. Under such circumstances in the absence of all proof, or suspicion even, that the prisoner was prejudiced in any way by. it, to set aside a verdict, after a fair trial seems to me going much too far.
How is it that the greatest criminals are treated with the greatest lenity and every inference indulged in their favor ? The answer is it is in favorem vitae, but has that sentiment any influence over the remorseless murderer? Why should this court say, in such a caso as this is, that it is within the reach of possibility the separating jurors, in the few brief moments they were absent from their fellows, may have been tampered with, or otherwise prejudiced against the prisoner ? Is it right, is it a demand of justice, that courts should fly to such possibilities. The apprehensions of popular excitement, demanding its victim, are all imaginary. The day of popish, and all other plots of a kindred character, have long since passed away. Trials for witchcraft and sorcery, where victims were yielded up to popular clamor, marked an uneducated and superstitious age. They are with the past, never to be revived in the clear sun-light of advanced education, and the highest civilization. Our history furnishes no instance, since these dark days, where an accused person, under a formal trial, has been taken from the courts, and victimized by the people, or his conviction obtained by the demands of an excited populace.
If there was any reason on the earth to suspect that the prisoner had not been fairly treated by the separating jurors, that they had talked about his case, or received improper or any impressions in regard to it, or that he had not a fair trial, I should be the last one to insist upon the verdict. But there being no pretense of this sort and a fair trial had, he is entitled only to strict justice.
In a murder case in Connecticut, The State v. Babcock, 1 Conn. B. 401, the court say a júdgment will not be arrested, merely because the jury, after the cause was committed to them, separated before they had agreed upon a verdict.
I can find but one case in the books, where mere separation of the jury has been held sufficient cause for setting aside a verdict, either in a civil or a criminal case. That case is The Commonwealth v. Mc Caul, 1 Virginia Cases, 271, where the court go the length of saying that the court should guard against the 'possibility of abuse by setting aside the verdict if any of the jury depart from the control of the officers. In England, where great strictness is observed the decisions are uniform, that though the jury separate, if there be no further abuse, this shall not vitiate the verdict, though it would be a contempt of the court if contrary to their instructions, and would be punished as such. In the case of The People v. Douglas, 4 Cowen, 34, the whole doctrine is fully examined. In that case it was shown, that two of the jurors ate cakes and drank spirituous liquors, and talked about the trial, and for these reasons, not for the separation alone, the verdict was set aside.
There is not a scintilla of evidence, going to show or to raise a suspicion, that any one of these jurors ate or drank or talked about the case, or had any intercourse with any person where such conversation would be likely to take place. Nothing of the kind is pretended or shown, and as the separation occurred before the case was finally committed to them, it is going further than I think the court should go, to hold it such an irregularity as to vitiate the verdict.
A bare possibility that the jurors separating might have been tampered with, or improperly influenced has never before in any court, except the solitary case of Mc Caul, been held sufficient to set aside a verdict. The books will be searched in vain for such a case. Mere separation, before the case is finally committed to the jury, unaccompanied with proof of exposure to improper influences, or just suspicion thereof, I repeat, has never until now, been held to vitiate a verdict.
Should such a criminal escape, the justice of the State might be well impeached. “ Judex damnatur, cum nocens absolvitw.” There is not in my judgment a single prominent fact in this case, consistent with the innocence of the prisoner, but
“In law, no plea so tainted or corrupt,
But, being seasoned with a gracious voice,
Obscures the show of evil.”
His counsel, who have managed this case with signal ability, have argued his innocence, as it was their duty to do. There is in every mind, a strong tendency to weave for itself a theory out of the minute incidents surrounding a transaction, itself shrouded in some mystery, and to bend everything to its support; it is not strange therefore, that able and enlightened counsel, having been assured of the fact itself by their client as he desires to establish it, should find in everything, a tendency to prove their theory true. As a judge, and disinterested, I can discover nothing on a careful examination of the evidence, on which to base their theory. Could I do so, and did I believe the prisoner had not a fair and impartial trial,I would not hesitate to award him another trial. I believe he has had a fair and impartial trial, and I further believe, that no rule of evidence, or principle of law, has been improperly determined against him; and therefore I think the verdict should stand.
Judgment reversed.