Costelo v. Crowell

Morton, C. J.

1. When any writing is offered as a standard of comparison, it is for the presiding judge to determine whether it is shown by clear testimony that it is the genuine handwriting of the party sought to be charged. Unless his finding is founded upon error of law, or upon evidence which is, as matter of law, insufficient to justify the finding, this court will not revise it upon exceptions. Commonwealth v. Coe, 115 Mass. 481 . Costello v. Crowell, 133 Mass. 352 .

We are of opinion that the evidence in this case was sufficient to prove the genuineness of the signatures of the defendant which were offered as standards; and that the presiding justice might properly admit them as standards.

*591 2. The defendant asked a witness whether he knew anything about the plaintiff making imitations of notes by tracing, whether the plaintiff had told him anything about making such imitations, and whether the plaintiff had shown him how he could make such imitations by means of a lamp and a table. The defendant disclaimed any intention of proving a distinct offence, but offered the evidence as showing that the plaintiff had the capacity, skill, and appliances which would enable him to forge the note in suit.

We are of opinion that the court rightly rejected this evidence.

In cases where a person is accused of a crime, it is not competent to show, as evidence of the corpus delicti, that he has committed similar offences, or that he is of bad character, or that he has the capacity and the means of committing the crime. The argument in favor of admitting such evidence is plausible. It might aid the jury if they could know the character of the defendant, — whether he is a man morally and physically able and likely to commit the offence; but the law excludes such evidence upon grounds of public policy, to prevent the multiplication of issues in a case, and to protect a party from the injustice of being called upon, without notice, to explain the acts of his life not shown to be connected with the offence with which he is charged.

If the fact that a defendant has committed a similar crime is not admissible, it is difficult to see how less pregnant evidence that he has the disposition or the capacity and means to commit it can be competent. There are many cases where the fact that a defendant has the means of committing a crime has been admitted in evidence against him; but it will be found that, in such cases, the evidence is not admitted as proof of the corpus delicti, but for the purpose of showing a guilty intent or knowledge on the part of the defendant, or of identifying him as the person who committed the offence. For instance, if a man is charged with passing counterfeit money, the fact that counterfeit money is found in his possession, or that he has passed it, is competent to show his guilty knowledge, and perhaps to identify him as the person who passed the counterfeit money which, by other evidence, is shown to have been passed. Commonwealth v. *592 Stone, 4 Met. 43 . Commonwealth v. Bigelow, 8 Met. 235 . But, unless the fact of passing the money is shown by independent evidence, the possession by him of any amount of such money would not be competent to prove the corpus delicti, that counterfeit money has been passed.

So, if it be shown by proof that a burglary has been committed, the possession by the defendant of burglarious tools is admissible to identify him as the burglar, but the possession of such tools is not competent to show that a burglary has been committed.

In the case at bar, the question whether the plaintiff forged the note in suit is not in issue. The sole issue is whether the note was forged; if it was, it is immaterial by whom it was forged. The evidence was offered to prove the forgery, the corpus delicti; and for this purpose we think that it was inadmissible. To hold otherwise would, we think, be inconsistent with the strong current of authorities. Hollingham v. Head, 4 C. B. (N. S.) 388. G-riffits v. Payne, 11 A. & E. 131. People v. Corbin, 56 N. Y. 363 . State v. Hopkins, 50 Vt. 316 . Dodge v. Haskell, 69 Maine, 429. Commonwealth v. Jackson, 132 Mass. 16 .

3. The court rightly excluded the entries made by .Corey during his lifetime in the diary kept by him. This was not an account-book, but a mere memorandum-book, and has no weight beyond any memorandum in writing made by him. The case of Watts v. Howard, 7 Met. 478 , is decisive against its competency. Exceptions overruled.