West v. State

The Chief Justice

delivered the opinion of the court.

The numerous errors assigned in this cause consist of three classes. They relate — I. To the formality and sufficiency of the record; II. To the validity of the indictment; III. To the legality of the proceedings upon the trial; and we propose to consider them in the order in which they are stated.

I. The first and second errors assigned to the sufficiency of the record are, that it does not aver that the court at which the trial was had, was held at Mount Holly (the place designated by law), nor that the jurors summoned to try the cause came to Mount Holly.

The record sets out, in usual form, that the indictment was found at a Court of Oyer and Terminer and General Jail Delivery holden at Mount Holly, in and for the county of Burlington, on the third Tuesday of August, 1846 ; that afterwards, at the same term, the defendant was arraigned, and pleaded not guilty. It then sets forth the postponement of the cause, by the usual continuances, from term to term, until the third Tuesday of November, 1847; the award of a rewire returnable on that day at Mount Holly ; and that the trial was had at a session of the court holden on the day specified, without averring at what place the session was held.

Where the cause is tried at the same term at which the indictment is found, without any continuance, it is not usual to specify the place at which the courtis held, otherwise than in the commencement of the caption. 4 Bl. Com., Appendix, § 1 ; 4 C hit. Cr. Law 384, 386 ; Cr. Cir. Comp. 88 : State v. Price, 6 Halst. 204.

*228 But where the cause is continued from term to term, or from one day to a subsequent day in the.same session, but at a different place, the precedents usually specify at what place each successive term or sitting of the court is held. 4 Chit. Cr. Law 380 , 381, 387, 402; Cr. Cir. Comp. 83; 1 Tremaine’s P. C. 161.

It will be observed that in many of the precedents the continuances are to different places, no two successive continuances being to the same place. The place of the holding of the court is not fixed and Unchanging. At each adjourment, the time and place to which the cause stands adjourned is designated and specified ou the record, and the record avers that each successive session was held at the time and place to which the adjournment was made. Under such circumstances, the propriety of specifying at each successive term the place at which the court is held is obvious. Under our statute, the place of the sitting of the court is fixed. The court, as appears by the record, was not continued to a special term, but until the next regular term. The time and place of holding the term is ascertained. The court is adjourned to no specified time or place, but to meet<c according to law.” Moreover the award of the venire, as entered upon the record in this case, is that “a jury of the country thereupon come before the justice and judges aforesaid, at the next session of the Court of Oyer and Terminer and General Jail .Delivery to be held at Mount Holly, in and for the county of Burlington, on the second Tuesday of November, 1847, by whom,” &c. And the record sets forth that, at a session of the court holden on the day specified in the award of the venire, the jurors of that jury being duly summoned, empanneled, and returned, also come, &c. Under the-award of the venire contained in the record, the jurors of that jury could not be duly summoned, empannelled, and relumed at any other place except Mount Holly. With these averments on the face of the record, the place of the sitting of the court being fixed and determined, it appears with reasonable and convenient certainty, that the court was held, and. the trial had at Mount Holly.

In the case of The State v. Price, 6 Halst. 205, the record *229 does not state, even in the award of the venire, to what place the jury are to come; which is uniformly slated in the English precedents, even when the trial is hold at the same tern). 4 Bl. Com., Appendix, § 1 ; 4 Chit. Cr. Law 384 , 386.

The third error assigned is, that it is not shown by the record that the jurors by whom the indictment was tried were good, and lawful men. The record, in this respect, is fully sustained by the precedents. It is not usual to aver in terms upon the record, that the jurors by whom the cause is tried are good and lawful men. That averment is uniformly made touching the grand jury, but not so in relation to the petit jurors. The record here, as elsewhere, contains the averment, that the jurors, duly summoned, empannelled, and returned for the trial of the cause, were elected and tried; which is a substantial averment that they were good and lawful men. 2s or is this averment omitted, as was suggested on the argument, only where the award of the venire requires that the jurors shall be good and lawful men. Many of the precedents contain no such averment, even where the qualification is omitted in the award of the venire. 1 Lil. Ent. 241 ; Cr. Cir. Comp. 28, 75, 78, 83.

The fourth error assigned is, that it does not appear that the court demanded of the defendant, before passing sentence, why judgment should not be pronounced, or that the defendant was present in court when the judgment was rendered. It is not necessary, except upon a capital charge, that the defendant should be asked if he had any thing to offer why judgment should not be pronounced against him. 4 Bl. Com. 375; 2 Hale’s P. G 401, 407, 408; 1 Chit. Cr. Law 720 . .

It is, however, necessary in all cases where any corporal punishment is to be iuflieted upon the defendant, that he should be personally before the court at the time of pronouncing sentenco, and it should so appear by the record. Hawk. P. C., b. 2, c. 48, § 17; 1 Ld. Bay. 267 1 Salk. 56; 1 Chit. Cr. Law 695 , 721.

But it is not necessary that it should be averred in express *230 terms that the defendant was present when the judgment was pronounced. It is sufficient if it can be collected by fair intendment from the record. When the record sets forth that it was demanded of the defendant why judgment should.not be pronounced, it is not averred that the defendant was personally present. The reasonable intendment is, that the demand was in open court, and that the defendant was there personally present. It appears by the record in this case, that the defendant was personally present in court on the third Tuesday of November, the day of trial, and on that day the judgment purports, on the face of the record, to be rendered. The record averring that he was present at the trial, and on the day on which judgment purports to be rendered, the legal intendment is, that he continued in court, and was present at the rendition of judgment. It is no answer to say, that peradventure the court adjourned from day to day. The complaint is not of the facts, as they really occurred, but of the defect apparent in the record.

Under the former act constituting courts for the trial of small causes, it was necessary, to entitle the defendant to an appeal, that he should have been present at the rendition of the judgment; and that fact must appear on the record, or the court of appeal has no jurisdiction. Being a question of jurisdiction, the right of appeal must clearly appear.- Yet if it appear by the record that the defendant appeared at the trial, and judgment was thereupon rendered without an adjournment to a future day, or, in case of an adjournment, that the defendant appeared in court on the day to which the cause was adjourned, it has always been held that the record shows with sufficient certainty that the defendant was present at the rendition of the judgment. Vandoren v. Vandoren, 5 Halst. 286; Reeves v. Wilson, 2 Green 116.

The application of this principle fully sustains the validity of the record in the present case. In legal contemplation the term is but one day.

The fifth error assigned is, that no judgment appears to have been pronounced on the three counts upon which the defendant was acquitted. And it is insisted that the defendant *231 cannot avail himself of the record upon a plea of autre fois acquit in regard to the offences charged in those counts.

In civil cases it is true that ordinarily a verdict is not admissible in evidence, unless judgment has been pronounced. But in criminal cases the better opinion seems to be, that it is not necessary, in order to sustain a plea of autre fois acquit, that judgment should be rendered on the former verdict. The verdict itself constitutes the bar. State v. Benham,, 7 Conn. 418 ; 3 Phil. Ev. (Cowen) 955, note 692; Whart. Cr. Law 155.

The reason why a verdict alone, without the judgment, is inadmissible in evidence, is because judgment may have been arrested or a new trial granted. The record of a judgment is therefore required. 1 Greenl. Ev. § 510; 1 Phil. Eo., (Cowen) 389.

But in the present case the objection is not applicable. Here is a record competent to be offered in evidence. It appears by that record that a verdict had been pronounced, and that judgment final in the cause had been rendered. There can be no new trial or arrest of judgment. And no court with that record before it, and with the evidence that the defendant had been tried and acquitted, would ever permit the defendant to be deprived of the benefit of his plea, or of any substantial right whatever, because the judgment of discharge was not formally spread upon the record. In point of fact such judgment is never pronounced. I find no valid objection to the sufficiency of the record.

It may be remarked, in regard to all of this class of objections, that they are purely formal. The objections are not, that iu point of fact, the trial did not take place at Mount Holly, or that the jurors were not good and lawful men, or that the defendant was not present at the time judgment was pronounced. But the objections consist in this, that it does not properly appear to this court, by the record, how the facts really were, in other words, that the record has not been made up in technical form. In point of fact, records in criminal cases, not capital, are never made up except there be a writ of error. They are made up by the clerk, or more usu *232 ally by the attorney, months, or even years, after the rendition of the judgment. To many clerks criminal records are entirely unknown, and comparatively but few attorneys are at all familiar with the forms. In matters so highly technical, and with which the clerk has no familiarity, errors can scarcely be avoided. Under such circumstances, to discharge a defendant -when there is no substantial error, when there has been a fair trial upon a legal presentment, upon the mere ground of a technical omission in the record, without affording an opportunity of amendment, seems an unnecessary, if not an unwise deference to legal technicalities. It is sacrificing the substance to the shadow, substantial justice to mere form. Neither the ends of justice nor the substantial rights of parties are promoted by such means. The court sits in judgment rather upon the skill or the ignorance of the clerk, than upon the guilt or the innocence of the defendant, the legalities of his trial, or the fairness of the proceedings by which his guilt was established. Under the operation of a severe penal code, where the defendant was put upon trial without the aid of counsel, some reason may have existed for this technical strictness, which certaiuly has no application to our penal code, or to the practice under it.

We are of opinion that the ends of justice would be better promoted, the law more effectually enforced, and no substantial right of the defendant entrenched upon, by giving an opportunity, in all cases where exceptions are taken to the form of the record, to apply to the court below to have the record amended, according to the truth and the fact of the case. To permit the record, after remaining open for months, to be shaped and moulded at the discretion of the clerk or attorney, and then the moment it is signed to invest it with such solemnity that no relief can be had against its omissions or its errors, savors more of scholastic refinement than of sound judicial wisdom. The course suggested was adopted by the Court of Errors of this state, in the case of The State v. Carter, upon an indictment for murder, and we see no sound objection to the practice.

II. Under the exceptions taken to the validity of the in *233 dictment, it is assigned for error that the second count is defective, because it contains no averment that Kerlin (the party who it is alleged was intended to be defrauded) had or claimed title to, or possession of, the land pretended to be conveyed; nor does it show upon its face that he had any interest whatever in the said land.

Whether this objection be valid depends entirely upon the legal effect and operation of the statute upon which the indictment is founded.

It is usually sufficient if an indictment be so framed that the offence is described in the words of the statute, or according to its legal effect and operation. 2 East’s Or. Law 989.

It is invariably requisite that all the ingiedients which constitute the offence should be set out in the indictment with certainty and precision. 1 Chit. Or. Law 169; Arch. C. P. 15, 16.

Thus, in an indictment for forgery, it is necessary to aver that the act was done with intent to defraud, for that is made by the statute an essential ingredient of the offence. But how, or in what manner the party was to be defrauded, is no ingredient of the crime, and, all the authorities agree, need not be Set out in the indictment. Arch. C. P. 23, 194 ; 2 East’s Or. Law 989. § 59; King v. Powell, 2 W. Blac. 787; 1 Leach 215; Rex v. Goate, 1 Ld. Bay. 737.

The real question presented by this assignment of error is, whether, under the statute of Hew Jersey against forgery, (Bev, Stat. 271, § 48,) it is necessary; to constitute the offence, that the party intended to be defrauded should have any interest whatever in the land pretended to be conveyed.

The English statute, 5 Eliz. c. 14, 2, (2 Slat, at Large 556,) prohibits the making or forging of any false deed, &c., “ to the intent that the state of freehold or inheritance of any person in any lands, or the right, title, or interest of any person in the same, shall or may be molested, troubled, defeated, recovered, or charged.” The third section of the same act makes it penal for any person to forge or make any false charter, deed, or writing, to the intent that any person shall have or claim any estate or interest for term of years of, in, or *234 to any lands. The precedents framed upon the second section of this statute uniformly set out the title of the party whose estate in the land was intended to be molested. 2 Stark. Or. Law 481; 2 Chit Grim,. Law 1062; Crown Cir. Com. 344.

The i’eason and necessity of this averment is apparent from the provisions of the statute. The offence defined by the act consists in the making of the false or forged instruments, with the intent that the estate of a person having a freehold or inheritance in the land be molested or changed. It is an essential ingredient in the offence that the act should be done with intent .to molest the estate of a freeholder, and that fact must appear upon the face of the indictment.

The statute upon which the present indictment is founded (Rev. Slat. 271, § 48,) prohibits the false making, altering, forging, or counterfeiting of any deed, &c., with intent to prejudice, injure, damage, or defraud any person or persons, body politic or corporate. The statute, is very similar in its terms to the English statute, 2 Geo. 2, c. 35, and was manifestly designed to embrace a class of cases not within the statute of Elizabeth. The latter statute contemplates solely an act done with design to molest an estate of freehold. The statute of New Jersey has “no such limitation, but prohibits the act, if done with intent to defraud any one. To limit its operation to persons having an interest in the same, or any other land, would greatly narrow its operation, and -defeat its most important objects. It would be, moreover, in direct contravention of the plain language of the act. In order to put such construction upon the statute, it would be necessary to show that no one could be defrauded by a forged deed, unless he had an interest in the land pretended to be conveyed, or in some other land, to the prejudice of which the forged instrument might operate. But it is too obvious to admit of controversy, that fraud, by means of a false or forged deed, may be committed, not only upon the person having title to the land, but more readily and more certainly upon persons who are induced to loan or advance money upon the faith of the pretended title. Such cases come clearly within the plain terms *235 and obvious meaning, and, as we apprehend, within the effect and operation of the statute.

If such be the true construction of the act, it can neither be necessary nor advisable to set out upon the indictment the title of the person intended to be defrauded. It is not necessary, because the fact averred is no essential ingredient of the offence. It is not advisable in any case, even when such interest exists, because, if stated, the proof must tally with the averment, or the defendant will be acquitted. 2 East’s Or. Law 988

But it is further insisted, that there should appear upon the face of the indictment some apparent connection between the transaction complained of and the party to be defrauded • and it is objected, that it does not appear how a deed from Bufiiu to Ellis, bearing date in 1760, can operate to defraud Kerim.

But the cases all agree that it is not necessary to show upon the face of the indictment hotv or in what manner the party is to be defrauded. That is matter of evidence upon the trial. It is enough, if by possibility he may be defrauded, upon the face of -the indictment. That it is not necessary to show upon the face of the indictment any apparent connection between the transaction and the party to be defrauded, is apparent from the precedents. Thus a defendant is charged by indictment under the statute, 2 Geo. 2, d. 35, with forging a bill of exchange, in the name of A. M., upon It. Gh, with intent to defraud A. S. 2 Stark. Cr. PI. 493.

Now if the act were charged to have been done with intent to defraud the drawer or endorser of the bill, there would have been upon the face of the indictment an apparent connection between the transaction and the person intended to be defrauded. But there is no apparent connection between the transaction, as stated in the indictment, and A. S., not a party to the bill.

'So for forging and uttering a receipt from T. F. to J. B., with intent to defraud T. B. 2 Stark. C. P. 495; Cro. Cir. Comp. 387.

So in Anne Lewis’ case, the indictment is for uttering a forged deed purporting to be a power of attorney from Eliza *236 beth Tingle to Frederick Predham, with intent to defraud Edward Mason. Foster’s Or. Law 116.

So under a statute of Pennsylvania, the indictment charged that the defendant falsely altered and defaced the registers and records of the office of the surveyor general of the commonwealth, by the following corrupt interlineation: “April, 1794, A. R. in right of A. S. 161 acres, and 95 perches,” with intent to defraud G. K. Ream v. Commonwealth, 3 Ser. & R. 207; Whart. Prec. 139.

It was suggested, upon the argument, that a different form of indictment was necessary where the instrument alleged to be forged respected real estate. But why so ? No such rules exist at common law. 1 Treta. P. O. 135. The statute draws no distinction between the two classes of instruments. It seems difficult to perceive why a different phraseology should be required in indictments to describe offences which the statute describes in language identical. No reason for the distinction was suggested upon the argument, and I apprehend none exists in fact.

The doubt respecting the form of the indictment has probably arisen from precedents of indictments under the statute of Elizabeth, and which have in some instances, either from abundant caution, or perhaps from inadvertency, been applied to offences under the statute of Oeo. 2.

This count being in the terms of the statute, including all the essential ingredients of the offence, and being in accordance with approved precedents under similar statutes, we are of opinion that this error cannot be sustained.

This conclusion renders it unnecessary to express any opinion upon the other counts of the iudictment. It has been long and well settled, that where the defendant is found guilty upon several counts, some of which are bad, judgment may be rendered upon the good counts. 1 Bos. & Pul. 187; 1 Chit. Or. Law 249-50; 1 Salk. 384.

And where judgment has been pronounced upon an indictment containing several counts, some of which are bad, the judgment will not be reversed on writ of error, but the court will apply the judgment to the good counts. 1 John. 320 ; 17 *237 Pick. 80 ; 3 Wend. 365 ; 6 Meto. 240; Speno. 404; Whart. Or. Law 618, 619.

This rule cannot be considered as unsettled by the recent decision in the House of Lords in the case of Bex v. O’Connell, 11 Clark & Fin. 15.

The distinction suggested, upon the argument, between a general verdict of guilty, and a verdict of guilty upon certain specified counts, cannot alter the application of the principle. The verdict was in the latter form in O’Connell’s case, but that circumstance does not appear to have been relied on as affording any ground for the opinion of the majority of the court.

In the ease now under consideration, the sentence pronounced is authorized by Jaw to be awarded in regard to the offence specified in the second count. The offence charged in the three counts upon which the defendant is convicted is virtually the same, and the punishment would have been the same whether the defendant had been convicted upon one count or upon all.

III. The third class of errors relates to the legality of the trial, and are founded upon bills of exceptions sealed by the court, pursuant to the act of March 9, 18-48. Pamph Laws 226.

1. The first exception is, that parol evidence was admitted of the contents of a deed, without the proof of notice to produce it. It appears, by the record, that the witness had testified that the defendant exhibited to him a deed, from Baffin to Ellis, for the land described in the deed in controversy, and that he believed that the deed thus exhibited was a different deed from that charged to be a forgery. The witness then stated the grounds of his belief that the deeds were not the same, to be, that in the deed exhibited there was an alteration, a small word, interlined ; that it was shorter, and folded above the signature; that the township of Hanover, or New Hanover, was mentioned, and that the deed before the court contained two lines which were not in the deed exhibited to witness. All this evidence was objected to because the deed itself was not produced, nor its absence accounted for. It is *238 not clear what contents, if any, of the absent deed were proved. But, conceding the fact to be as alleged, the evidence does not fall within the principle of the objection. The contents of that deed were not in question before the jury. The parol evidence was not offered as a substitute for the written instrument, nor to contradict or alter it. Nor does it fall within the objection, that it was not the best evidence. It was a simple question' of identity or diversity. The witness had sworn that he believed that the deed in question was not identical with a deed which had been previously seen by him, and, in stating the grounds of his belief, he enumerated a variety of particulars, in which according to his recollection, the two instruments differed. Now the production of the deed before the jury would have been no evidence whatever of the grounds of his belief, though it might either have confirmed or contradicted his impressions.

The second exception is, that the court admitted evidence to show that the signature, Caleb Shreve, as one of the subscribing witnesses to the deed charged to be forged, was not the signature of Caleb Shreve the grandfather of the witness, though the identity of the subscribing witness to the deed with the grandfather of the witness had not been established.

The decisive answer to the objection is, that the evidence is competent as far as it goes; though not an entire chain, it is a complete link in the chain. The fact stated was competent ami relevant. To how much weight it might eventually be entitled, would depend, doubtless, upon how strictly the state identified the subscribing witness with the person referred to. This witness states that he never knew any other Caleb Shreve before him. Had another witness testified that no other Caleb Shreve resided in that region of country at thé date of the deed, it could not be denied that the entire evidence would be both relevant and material, though the testimony of each witness standing alone might be indifferent, and the whole united not conclusive. It is incumbent upon a party complaining of an error, to show clearly that the error was committed. As the case stood, the judge clearly committed no error in admitting the evidence. The whole evidence is not required to be spread upon the bill of exceptions. How fully the identity *239 was established, this court cauuot know. The mere admission of testimony in itself competent, but which becomes irrelevant or incompetent by the failure of some essential link in the chain, is no ground for reversal.

The third exception is to the admission of the evidence of George Sykes, who testified, that in July, 1844, the defendant called on the witness in relation to the land he claimed in the Buffin meadow. He told witness that he had difficulty about some land with Israel Kerlin. Witness told him he knew the title to most of the land about there, and asked him what he claimed under. Defendant said under a survey to Japhet Leeds, made in 1763. Witness told him it could not be so, there was no such survey there. The ground of exception to this evidence is, that the conversation detailed was irrelevant.

The defendant stood charged with making and uttering a forged deed from Buffin to Ellis to defraud Kerlin. The uttering is alleged to have taken place on the 31st of August, 1844. Upon this issue it was certainly not irrelevant to show that, within two months of the alleged uttering of the forged deed, the defendant had claimed title to the tract in question, not under a deed from Buffin to Ellis, in 1760, but under a survey of Japhet Leeds, in 1763, and that he was then informed that there was no such survey as that under which he pretended to claim. But it is alleged that the tracts referred to in the conversation were in Baffin’s meadow, and must therefore have been different from the tracts included in the deed, which are described as cedar swamp and pine land. The answer is, that the tracts described as cedar swamp in 1760 may have been converted into meadow before 1844, and that the tract known as Buffin’s meadow may have included within its limits cedar swamp and pine land, as well as meadow. The identity of the two tracts may have been fully established upon the trial. It is enough for this court to see that there is no evidence upon the record that they were not the same.

The fourth exception is, that on a cross examination, by the defendant, of a witness on the part of the state, and who had testified that the deed alleged to be forged w$s in the handwriting of the defendant, the witness was shown an instrument of *240 writing, a part of the writing being covered and concealed by a piece of newspaper tied over it, and was asked by the counsel of the defendant if the portion of the writing that was visible was West’s, the defendant’s. To’ the question and mode of exhibiting the paper, the counsel of the state objected. The court sustained the objection, and decided that the .paper must be so shown that the witness could see the w'hole of the writing, in this there was no error. It does not clearly appear for what purpose the evidence was offered. It may have been to prove the instrument shown, for the purpose of offering it in evidence, or it may have been, as was probably the case, for the purpose of testing the value of the witness’ opinion in respect to the handwriting of West, and discrediting him before the jury. If the former were the object, the witness could form and express his opinion only upon the whole writing. If the latter, the better opinion seems to be, that the party was entitled to lay the paper before the jury, to form their opinion as to the testimony of the witness, and therefore the whole paper should be shown. For the jury should'not judge, from the inspection of the entire instrument, of the value of the opinion of a witness who has only seen a part of it.

But admitting that the witness is not, as a general rule, entitled to see the entire instrument, it is- clearly the duty of the court to see that the paper is so exhibited as to enable the witness to judge of its general character, and that the cross-examination i's so conducted as fairly to test the value of bis opinion. This must be left, in some measure, to the discretion of the judge, and if he err in a matter of discretion, his opinion is not subject to review. 1 Greenl. Ev. § 431.

The propriety of the decision must necessarily depend upon circumstances of which this court can have no knowledge. What was the extent of the writing? what part of it was shown? was it. sufficient to enable the witness fairly to judge of the character of the writing ?

The fifth exception is, that the deposition of Joseph Walker, offered by the defendant for the purpose of contradicting the evidence previously given by said Walker, on the part of the state, was overruled by the court.

*241 What evidence the deposition was designed to contradict, or whether it was material or relevant to the issue, does not clearly appear. The only evidence of Walker contained in the bill of exceptions is, that having testified to W’est’s handwriting on cross-examination, he said he thought that West was a subscribing witness to some deposition, and that witness had seen him write then and at other times. The design of offering the deposition seems to have been to show that West’s handwriting was not upon it, and thus to contradict the witness. The objection ivas, that the deposition offered was not identified as the one referred to by the witness; and the objection seems well founded, for there appears upon the record no evidence whatever of the identity of the instruments.

The last ground of exception is the admission of the testimony of John Beatty, “ because he was an expert,” and testified only from comparison of handwriting, and because two of the deeds (from which he formed his opinion) had not been proved or given in .evidence. ‘ It appears by the record that the latter ground of objection was removed, upon the trial, by proof of the deeds. The question presented by the record, in connection with the facts, as there disclosed, is, whether upon an indictment for forgery of an ancient deed, in regard to which, from lapse of time, all personal knowledge may be presumed to be lost, it is competent to establish the forgery by the testimony of an expert, who has no previous knowledge of the handwriting, but who speaks entirely from comparison of the handwriting in the instrument alleged to be forged with that in other ancient, deeds or writings admitted or proved to be genuine.

The general rule of the common law, that handwriting is not to be proved by comparison, has been fully recognized in this state, and is not now questioned. The proof must be by a witness having proper knowledge of the party’s handwriting, acquired either by seeing him write, or by correspondence or other business transactions with him, from which a personal knowledge of the character of the handwriting is acquired.

Where, however, the writings are of such antiquity that *242 living witnesses cannot be had, the rule is, and from the very necessity of the case must be, relaxed. In such cases the course is to rely upon the testimony of experts, who testify concerning the genuineness of the instrument in question by comparison with other documents admitted to be genuine, or proved to have been treated and acted upon as such. Or the expert may speak from a knowledge of the handwriting, acquired by a previous inspection of such ancient writings. 7 East 282, note a; 14 East 327; 1 Phil. Ev. 491; Greenl. Ev. § 578; Jackson v. Brooks, 8 Wend. 426 , S. C.; 15 Wend. 111 ; Strother v. Lucas, 7 Peters 767 ; Rout’s administrator v. Riley’s administrator, 1 Leigh 222 .

The deed alleged to be forged bears date in 1760, and clearly comes within the reason and operation of the rule. Of the handwriting in a document so ancient, no living witness could speak otherwise than by comparison. If the evidence be rejected, no direct evidence of the forgery is attainable.

In the eases cited the evidence was offered in civil suits, in order to prove the genuineness of the signature. But if evidence by comparison is properly admitted in such casé to prove the genuineness of a signature, the same kind of evidence must also be admitted to prove that the signature is not genuine. 1 Phil. Ev. 492.

The general rules of evidence are the same in criminal and civil cases. What may be received in the one case, may be received in the other, and what is rejected in the one, ought to be rejected in the other. 2 Stark. N. P. 155; Roscoe’s Grim. Ev. 1; Puller’s N. P. 235; Doe v. Newton, 5 Adol. & El. 514; Doe v. Suckermore, 5 Adol. & El. 703.

We find no error, either in the frame of the indictment, the making up of the record, or in the exceptions sealed upon the trial, and are of opinion that the judgment be affirmed.

Nevius and Ogden, Justices, concurred.

Judgment affirmed.

Cited in State v. Norton, 3 Zab. 47; Dodge v. State, 4 Zab. 464; Johnson v. State, 2 Dutch. 321; Donnelly v. State, Id. 471.