dissenting. — The holding of the majority is that the state was not entitled to introduce in evidence the opinion of the witness Campbell that the signatures to the note to which he referred were in the same handwriting as the signatures to the instrument on which the indictment is based, for the reason that the note was not produced, and a comparison Of the signatures could not be made, and other witnesses could not be examined with reference to the genuineness of the signatures to said notes. The evidence shows that defendant had the note in his possession and delivered it to the witness Campbell (who is cashier of a bank) as collateral security, and that it was obtained from the witness by defendant’s wife after the indictment was found. The state, therefore, could not produce it, as it could not compel either the defendant or his wife to deliver it up, or produce it on the trial. It is, therefore, under the rule laid down by the majority, deprived of important testimony because it cannot produce the instrument to which it refers; the instrument being in the possession or under the control of the defendant. In my opinion such a rule ought not to obtain in any case. It enables the accused to deprive the state of testimony having an important bearing on the case, simply by suppressing or destroying the instrument to which it relates. It is not essential to the protection of any of the legal rights of-the accused, and its only effect is to embarrass or defeat the administration of justice. The rule is not only without .the support of reason, but, so far as my examination has gone, finds no support in the authorities.
Rothrock, J., concurs in this dissent.