State v. Shinborn

Bellows, J.

The admissibility of the testimony of Mrs. Bellows, is substantially settled by the case, Whittier v. Franklin, Merrimack county, June Term, 1865, where it was decided that it was competent for a witness to state, in respect to a horse at the time he went off a certain bank, that he saw no appearance of fright, that his head was turned round on his side and plaintiff was drawing upon the rein at the time the horse went over the wall, and he did not appear to be frightened in the least before he went off the bank, or afterwards; that he appeared to be rather a sulky-dispositioned horse to use.

This was held to be admissible on the ground that it came within that class of cases where evidence is received from necessity, arising from the impossibility of stating those minute characteristics of appearance, sound, and the-like, which, nevertheless, may lead the mind to a satisfactory conclusion, and be reasonably reliable in judicial investigations. Among instances of this class, forming an exception to the general rule, is the proof of identity in a great variety of cases ; such as the identity of person, handwriting, animals, and inanimate objects ; and so where the identity is detected by the ear, or by the sound of the human voice, of a musical instrument, the discharge of a pistol, and the like. In the same class are opinions as to distances, size, weight and age.

In these and an infinite variety of other cases, the conclusion is drawn from evidence addressed to the eye or ear or both, and which, from its very nature, cannot be described to another. If it could be, so as to enable a jury to decide, then the necessity of receiving the opinion, if it may be so called, would not exist, and the opinion should not be received ; and of this class the proof of value is held to belong in New Hampshire. *

In the case before us, no objection is made to the evidence that the sound of a carriage was heard, and none could properly be made ; but the objection is to stating, in substance, from what direction it first came, or from what point the carriage first started; and the objection is put upon the ground of the liability to be deceived in respect to the place from which the sounds proceed.

Under some circumstances there may doubtless be difficulty in determining that point; in others there is little or no difficulty in doing so; and, upon the whole, we think that evidence of this character is so far reliable, as, in general, to deserve the consideration of a jury. In some cascs.it would, of course, be entitled to but little weight, but the jury *502 would be well qualified to determine what weight to give it in each case as it may arise.

The same, and perhaps greater, objections might be urged against the proof of identity from the sound of the human voice, and yet in that case, as well as this, from the impossibility of describing its characteristics, there might, for the want of proof of this kind, be a failure of justice.

For the purpose of proving entries upon two hotel registers to have been made by the respondent Shinborn, an expert, who had seen them, was allowed to testify that they were in the handwriting of the person who wrote certain other signatures which were produced and proved, or admitted, to be Shinborn’s.

The objection was that these registers were not before the jury, but it being found by the court that they had been destroyed by Shinborn for the purpose of suppressing the evidence, the testimony of the expert was admitted.

In Bowman v. Sanborn & al., 25 N. H. 87, it was decided that the signature of a person to an instrument might be proved by the opinion oí an expert that it was in the handwriting of the one who made other signatures already in the cause, and not contested, and that it was not necessary that there should have been evidence previously, from a person acquainted with the handwriting in question. If, then, the signature in question is before the court, it may be proved either by the testimony of one acquainted with the handwriting, or by a comparison by an expert with an undisputed signature already in the cause.

If the writing has been lost or destroyed, it may be proved by any witness who has seen it, and is acquainted with the signature in question, even if such acquaintance is derived wholly from having once seen the party write.

So we think that an expert, who has seen such writing and compared it with an uncontested signature in the cause, is competent to prove it when afterwards lost.

It is true, that, in the absence of the paper, the jury have no opportunity for an actual comparison of the handwriting, and thus to test the opinion of the expert; but of this the respondent who has destroyed it ought not to complain; and, besides, in the case of the non-expert who testifies from a knowledge of the party’s handwriting, derived from once seeing him write, the signature which he saw made is not ordinarily received for the purpose of comparison; but such witness speaks from a comparison of the signature in question, with the exemplar in his own mind; and the jury have no means of testing the accuracy of his comparison.

In both these cases, then, the jury are equally without the means of testing the opinions of the witnesses by-any direct comparison. In each case the opinion of the witness is found from a comparison of the signature in question with, (it may be a single genuine signature,) or an exemplar derived from it, in his own mind; aided, as it may be, in the case of the expert, by a knowledge of those characteristics which indicate the natural or simulated signature.

*503 Upon the testimony of the expert, we think, therefore, that full as much reliance can be placed as on that of the non-expert who has witnessed but a single signature; and such was clearly the opinion of the court in Bowman v. Sanborn & al., 25 N. H. 111.

Where a writing is lost, the evidence of its execution must in general be the same as where it is produced, with the exception of what may be derived from comparison; and it surely cannot be urged that any greater strictness shall be required where the instrument is fraudulently destroyed by the maker with a view to the suppression of the evidence.

Against the admission of this evidence we find no authority, and none is cited by the defendants’ counsel, unless it may be the case of Reed v. Spaulding, 42 N. H. 114; and that, we think, was not in point, because there the witness was,not an expert, and, besides, the signature, supposed to be genuine, was hot in the cause, and that is expressly stated as a ground for excluding the testimony. It is proper to add, also, that the specific exception here is that the books were not produced and no objection was made that the other signatures were not genuine.

For these reasons, we think the opinion of the expert was rightly admitted.

The proof of the entry upon the register of the Island House stands upon much the same footing as the other, although the specific objection here is, that the evidence of a person acquainted with the handwriting’ was not first adduced.

As we understand the case of Bowman v. Sanborn, 25 N. H. 111, cited by defendants’ counsel, this is entirely unnecessary, and the case of Myers v. Toscan, 3 N. H. 47, is there examined and qualified, and we think correctly.

The remaining question is whether the entries on the books of Martin, the stable keeper, made by himself and son, were admissible in evidence under the circumstances disclosed.

It appeared that this book contained the daily charges of horses let at this stable; that the entries were first made during the day upon a slate by the said Martin, his son, and a hired man, each of whom entered thereon such horses as he let, and every day these entries vrere copied by the said Martin and his son upon the book. The correctness of the entries upon the slate was verified by all these parties, and so, also, as to copying them upon the book, by the father and son; but they all testified that they could not remember the transactions so recorded.

We have a case, then, where entries were made in the usual course of business upon the books of a third person, by persons whose duty it was to make them, and who testify to their correctness when made, but who have now forgotten the transactions. This statement, however, is to be qualified by the circumstance that none of the entries were copied into the book by the hired man who may have made the original entry in question.

Independent of this qualification the competency of such entries is well settled. 1 Greenl. Evi. sec. 115, and cases cited; Bank of Monroe v. Culver & al., 2 Hill 531; New Haven County Bank v. Mitchel, 15 Conn. 206 . It is also well settled in our own State. Pillsbury *504 v. Locke, 33 N. H. 96; Pembroke v. Allenstown, 41 N. H. 365; Webster v. Clark, 30 N. H. 245, and Wheeler v. Walker, not yet reported, Sullivan county, 1864.

We even go further in this State, and hold that a private memorandum made by a person for his own convenience, and not in the usual course of business, but verified by such person upon the stand, may be read in evidence when he has since forgotten the transaction. The leading case to this point is Haven v. Wendell, 11 N. H. 112, and this has been followed by numerous cases here; and the doctrine must now be considered as established in New Hampshire. Among those cases are Watson v. Walker, 23 N. H. 471, 495; Webster v. Clark, 30 N. H. 253; Tuttle, Admin'r v. Robinson, 33 N. H. 104; see also 2 Cowan Phillips’ Evidence, p. 750, n., 528, and cases collected.

The question, then, is, whether the admissibility of these entries is affected by the fact, that, for aught that appears, the horse may have been let to White, and the entry on the slate made by the hired man. It will be observed, however, that he testifies to the correctness of whatever charges he made, in substance that he let the horse as his entry purported. The case, then, is this : Mr. Martin or his son testify that

they copied correctly from the slate a charge of a horse to the respondent White ; and they both, together with the hired man, verify the correctness of all their entries upon the slate; and, of course, if the entry there was made by the hired man, he testifies to the correctness of it; and so it is as to the others. In effect, then, it is much the same as if one person had let the horse and made the charge upon the slate, and another had copied the charge into the book kept for that purpose, and both entries were verified by the person making them.

Upon the whole, we think that this comes within the principle on which such entries are admitted, for it is obviously immaterial whether the entry upon the slate was made by the one who copied it or -not; because whoever it was, he had forgotten it, and its value as evidence depended upon the statement that it was correctly made; and it could make no difference whether that statement was made by the hired man, or the person who copied it. In either case, the entry is verified by the oath of the party making it; and, on proving it to be correctly transferred to the book, the entry stands substantially as if all was done by the same person.

In Price v. Lord Torrington, 1 Salk. 285, reported 1 Smith’s Lead. Ca. 139, which was assumpsit for beer sold to the defendants, it appeared, that, in the usual way of business, the draymen came every night to the clerk of the brew-house, and gave him an account of the beer they had delivered out, which he set down in a book kept for that purpose, to which the draymen set their names. The drayman who delivered this beer was dead; but, on proving his signature, the book was held to be good evidence of the delivery. This was admitted upon the ground that it was made in the usual course of business by a person since dead ; although, in fact, the entry was made by another, showing that it is not essential that all should be done by the same person.

In Pillsbury v. Locke, 33 N. H. 96, a witness testified, that, as he *505 drew each load of timber, the amount of which was in dispute, he put down upon a slate the amount of each stick, added them up and gave it to his wife or daughter, who entered it in a memorandum book, which he examined, and found the entries correct, but he could not recollect the amount of either load; and the court held the entries to be admissible.

It is true, as suggested by the respondent’s counsel, that these entries are one degree removed from those in the. cases cited; but still they are in every part verified by the oath of a witness, and come fairly, as we think, within the scope of the doctrine announced in the cases referred to.

The case of Barker & al. v. Haskell, 9 Cush. 218 , is much in point. There the entries upon, a slate were made by one plaintiff, and copied into the day book by the- other plaintiff, and verified by both; and the books were held to be admissible; and so is Smith & al. v. Sanford, 12 Pick. 139 , and Faxon v. Hollis, 13 Mass. 427 .

The objection to the duration, of the imprisonment cannot be maintained, and does not appear to be urged by counsel.

Fxceptions overruled.