dissenting.
The defendant, who lived in High Point, was convicted of the larceny of an automobile, the property of Dr. E. H. Bowling, whose home was in Durham. The car was stolen from Dr. Bowling’s garage on the night of 10 September, 1920, and was recovered by him on 6 October, 1921, at Winston-Salem. It was definitely identified although the numbers on the engine and carbureter had been removed. It was found in the possession of a man named Gordon. He had purchased it from Roy Ingram, and Ingram from the defendant. The defendant claimed to have gotten it from Bill York, at Cheraw, S. C. To show that the defendant was in Durham when the car was stolen the State introduced as a witness O. E. Stewart, who was asked the following questions:
“Q. I hand you a paper and ask you what that purports to be? A. It purports to be a leaf out of the register at the Church Street Hotel. Church Street Hotel is at the corner of Parrish Street and Church Street in Durham.
“Q. What date does that paper bear ? A. I got that paper from the register at the Church Street Hotel. I personally took it out of the Church Street Hotel register. Mr. Clayton was with me when I took it out. I got it a week or two after Dr. Bowling got his car back.
“Q. Was that some time in the fall of 1921? A. Yes, sir. I said I got that from the hotel. Mr. Clayton was present when I got it. I have had possession of it most of the time and Mr. W. G. Bramham had it the rest of the time. It is exactly like it was when I took it from the hotel register. There have been no changes or mutilations on it and no writings have been added to it.”
The defendant in apt time objected to each of these questions and to the admission of the paper in evidence.
The witness then said: “I find on that paper, dated 10 September, 1920, the name of a man Hendricks. His initials appear to be E. D. I have never seen defendant write his name. I never saw him give either one of the bonds.”
Nick Lewis, a witness for the State, testified: “I do not work at Church Street Hotel. I have never worked there. The Durham Hotel and Church Street Hotel in 1920 were operated by the same person. I own the Durham Hotel. I bought it from the man who used to run the Church Street Hotel. I do not know the register that was used in the Church Street Hotel in 1920. I see the leaf that came from the Church Street Hotel; it looks like the Durham Hotel to me. I cannot understand how that came from the Durham Hotel. They showed it to me the other day. I do not know whether they used the same register at both hotels in 1920. Steve Changaris might have taken some leaves *333with him to the Church Street Hotel. He was in charge of it in 1920. I do not remember who was the clerk. I never saw those leaves up there. I had nothing to do with the Church Street Hotel. I never have been there in my life. That might have come from the Church Street Hotel but that has Durham Hotel on there. In 1919 I bought the Durham Hotel from Steve Changaris. I do not know what register he used in the Church Street Hotel. I have never been up there. They were both operated by the same man prior to the time I bought it. I purchased the Durham Hotel, I think, in January, 1919, or 1920. I never did own the Church Street Hotel. I never have been up there. I heard that the same people owned them both prior to January, 1919. This leaf says the Durham Hotel. I do not know whether it came from the Durham Hotel or Church Street Hotel. This does not say anything about Church Street Hotel; it was the Durham Hotel. I do not think it came out of the Church Street Hotel. I do not know whether it did or not. I never gave it to Stewart out of my register. I do not know where it came from.”
Papers were introduced bearing the defendant’s name in his handwriting, and experts compared this with the entry on the hotel register and expressed the opinion that the handwriting in each was the same. This was excepted to by the defendant.
In this case the disputed writing was the name of F. D. Hendricks as it appeared on a paper purporting, as testified by one witness, to be a leaf from the register of the Church Street Hotel, and as testified by another, from the register of the Durham Hotel. The contested question was whether this- name was in the handwriting of the defendant. It was the purpose of the prosecution to show that the defendant registered under the name of E. D. Hendricks a short while before the car was stolen, that he disappeared about the time it was lost, and that sixty days afterwards he had the car in his possession. Proof of his handwriting was therefore relevant, and as a basis for comparison of the signature in controversy with his admitted handwriting, the register was competent when properly identified and authenticated. Latham v. State, 172 S. W., 797, 801, 808; James v. Conklin, 158 Ill. App., 640, 643; People v. McKeown, 171 Ill. App., 146.
The defendant contended that the signature had been admitted in evidence without due proof that the leaf on which it was written was a part of the register of the Church Street Hotel. Proof that the leaf had been taken from the register of this hotel was particularly important in view of a conflict in the testimony of Stewart and of Lewis. Stewart said he had taken it “out of the Church Street Hotel register.” Lewis testified, “This leaf says the Durham Hotel.” Identification of the paper was therefore absolutely essential to a fair trial.
*334In tbe opinion of tbe Court it is said that tbe loose leaf was properly identified by Stewart. Tbis conclusion, I think, is not justified. It was tbis pretended identification to which tbe defendant objected in limine. He objected because Stewart’s testimony was manifestly based either upon tbe “purport” of tbe register or upon information derived from another. In either event tbe basis of bis pretended identification was not sufficient. What are tbe facts? Tbe car was stolen on 10 September, 1920. More than a year afterwards two men who, so far as tbe record shows, bad never before entered tbe Church Street Hotel went there and, without tbe knowledge or consent of any one connected with tbe hotel, abstracted a leaf on which was written tbe name of E. D. Hendricks. Why did these men conclude that tbe book from which tbe leaf was taken was tbe hotel register? If from what some one told them, Stewart’s testimony was incompetent as hearsay. Tbis is elementary. But there is no evidence that any one told them anything. If they reached their conclusion from what the book purported to be, Stewart’s testimony was equally incompetent.
The rule is that a record of this character must come from the proper custody, and that its identity and genuineness must be established; for the court must be satisfied by legal and competent evidence that the paper is what it purports to be. The reasons for the rule are thus formulated by Wigmore in his work on Evidence:
1. “Most documents bear a signature, or otherwise purport on their face to be of a certain person’s authorship. Hence a special necessity exists for separating the external evidence of authorship from the mere existence of the purporting document. A horse or a coat contains upon itself no indications of ownership; when it is claimed that Doe wore it or rode it, all can appreciate that this element is missing and must be supplied by evidence. But a document purports in itself to indicate its authorship; and the perception that this element is nevertheless missing, and must still be supplied, is likely not to occur. There is a natural tendency to forget it.. Thus it has constantly to be emphasized by the judicial requirement of evidence to that effect.
2. “The original of a writing is usually presented to the tribunal ‘in specie,’ while other material objects are not required to be and seldom are brought into court (except such articles as the tools of a crime or the clothes of a victim) ; so that, in practice, the most' common opportunity for the operation of this aberrant tendency occurs for writings, visibly in existence and mutely suggesting that they are all that they purport to be. Thus the mental tendency is especially forcible, frequent, and misleading where documents are involved. For these two reasons, then, it has happened that the specific rules that have grown up concerning modes of authentication have come to relate to writings alone.
*335“Thus it is that in the traditions of the common law a wise emphasis has been placed upon the necessity of supplying the logical element of authenticity for writings. The general principle has been enforced that a writing purporting to be of a certain authorship cannot go to the jury as possibly genuine merely on the strength of this purport; there must be some evidence of the genuineness (or execution) of it.” Vol. IV (2 ed.), sec. 2130.
.It seems to me that the opinion of the Court has lost sight of this distinction and has confused “the mere existence of the purporting document” with the external evidence of its identification, and in consequence of this “aberrant tendency” has approved the admission of incompetent evidence. The.foundation for the admission of the objectionable evidence should first have been laid by proving that the register from which the leaf had been taken contained a record of the names of guests and other entries made at the date mentioned in the regular course of the business conducted by the hotel. Reeves v. Davis, 80 N. C., 209; Mott v. Ramsay, 92 N. C., 152; Glenn v. Orr, 96 N. C., 413; Springs v. Schenck, 106 N. C., 154; Darden v. Steamboat Co., 107 N. C., 437, 446; Cheatham v. Young, 113 N. C., 161; Trust Co. v. Benbow, 135 N. C., 303; Ediuards v. Erwin, 148 N. C., 429.
For error in the admission of evidence there should be a new trial.
Staoy, J., concurs in this opinion.