
    [Crim. No. 793.
    In Bank.
    June 7, 1902.]
    THE PEOPLE, Respondent, v. JOHN LAPIQUE, Appellant.
    Criminal Law—Forgery— Slight Proof—New Trial—Newly Discovered Evidence—Cumulative Proof.—Where it appears that upon the trial of a defendant charged with the forgery of a note, the evidence was strongly conflicting, and the evidence on the part of the prosecution, leaving out of view that for the defendant, was extremely slight and unsatisfactory, matters which in ordinary cases might be disregarded on motion for a new trial will be closely examined, and a new trial should be granted for newly discovered evidence that the prosecuting witness had declared that he himself had signed the note alleged to be forged, although such evidence is, in some sense, cumulative for the defendant.
    Id.—Evidence—Financial Condition of Prosecuting Witness.—Upon such trial it was clearly error for the court to admit evidence of the financial condition of the prosecuting witness.
    Id.—Isolated Instruction—Ignoring Testimony for Defendant.— Where the testimony for the defendant proceeded wholly on the theory that the defendant did not sign the alleged forged note at all, an isolated instruction, that if the prosecution had not shown beyond a reasonable doubt that the defendant had no authority to sign the name of the prosecuting witness to the note they must acquit the defendant, though not abstractly erroneous, may have improperly influenced the jury to take the instruction as an intimation by the court that the defendant actually signed the note.
    APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. F. H. Dunne, Judge.
    The facts are stated in the opinion of the court.
    Theodore J. Roche, for Appellant.
    Tirey L. Ford, Attorney-General, A. A. Moore, Jr., Deputy Attorney-General, and Lewis F. Byington, District Attorney, for Respondent.
   McFARLAND, J.

The defendant was charged with and convicted of the crime of forgery. He appeals from the judgment and from an order denying his motion for a new trial.

After a careful consideration of the case, we are of the opinion that the conviction should not be allowed to stand.

The appellant was charged with forging the name of the prosecuting witness, Philip Maysounave, to a certain promissory note, dated November 15, 1898, purporting to have been made by said Maysounave and payable to the order of Louise Lagarde. Maysounave testified that he did not sign the note or authorize any one to sign it; but, although he was intimately acquainted with appellant, he did not say that the signature to the note was made by appellant or resembled his handwriting. The only evidence tending to connect appellant with the signature was the testimony of an expert in handwriting; and he did not undertake to say that the signature was written by appellant. He testified that, in his opinion, the signature to the note was not in the same handwriting as the admittedly genuine signature of Maysounave to a certain instrument in writing introduced in evidence, marked “Exhibit 2”; and he based his opinion upon his belief that the signature to the note was a tracing of the signature on Exhibit 2, or that the; writer of the signature had the exhibit before him and endeavored to closely copy it. It appeared, however, from oral and documentary evidence which we can hardly see any valid excuse for disregarding, that the note had been made, and copied by witnesses, long before Exhibit 2 was in existence, and therefore could not have been traced from the latter. There was also some testimony to the point that the prosecuting witness had admitted that he had signed the note, but that he had received no consideration from the woman who was payee therein, and that therefore he should not be called upon to pay it. The only testimony of this expert witness which tended to connect appellant with the alleged forgery was, that the genuine handwriting of appellant and the disputed signature to the note showed some “similar characteristics. ’ ’ There was conflicting evidence on this point, and one witness in particular testified that he was well acquainted with appellant’s handwriting, and had great experience in examining signatures, and that the signature to the note was not that of appellant nor in his handwriting. There was other evidence introduced by appellant greatly conflicting with that of the prosecution which need not be here stated in detail.

The foregoing presents substantially the evidence in the case. It is not necessary to determine judicially whether or not this evidence, as a matter of law, is sufficient to sustain a conviction of a high felony. It is apparent, however, that it is not only strongly conflicting, but that the evidence on the part of the prosecution—leaving out of view that of the appellant—is extremely slight and unsatisfactory. Under such circumstances matters which in ordinary eases might be disregarded should be closely examined.

We think that the court should have granted a new trial on the ground of newly discovered evidence presented by the affidavit of Charles W. Smyth, in which he swears that the prosecuting witness had told him that he himself had signed the note alleged to have been forged. There is no contention that this evidence was not new or that it could with reasonable diligence have been discovered before the trial. It is contended, however, that it was merely cumulative, and was therefore no basis for a new trial. It was, no doubt, in a sense, cumulative, because there had been some evidence introduced at the trial on that general subject; but it is not the law that newly discovered evidence is not ground for a new trial merely because it comes within the category of “cumulative.” It is, no doubt, the general rule that such evidence, when merely an addition to a mass of evidence of the same import and effect, differing in no way in its character and significance, would not warrant a new trial. Each case must depend upon its own circumstances. For instance, to put an extreme ease, a mass of highly important newly discovered evidence should not be disregarded because there had been some slight, insignificant, and inconclusive evidence introduced at the trial on the same subject. Now, in the case at bar, only two witnesses testified to the declarations of the prosecuting witness that he had signed the note. One of these witnesses was the defendant himself; and, of course, the testimony of a defendant in a criminal ease is always taken by a jury with many grains of allowance. The other was the notary who protested the note; and although he was an unbiased witness, and stated quite strongly in one part of his testimony that Maysounave admitted that he signed the note, still his testimony taken altogether leaves doubt as to whether or not he thoroughly understood what Maysounave said. But the affidavit of Smyth leaves no doubt on the subject. In his affidavit, after stating that Maysounave had informed him that he “had either signed said note at the request of said Louise Lagarde after the body of the instrument had been written, or that she had presented a blank piece of paper to him to which he attached his signature at her request, and that thereafter the body of the instrument purporting to be a promissory note had been written over his signature,” he proceeds as follows: “While affiant is not willing to swear positively to which one of these statements said Philip Maysounave made to him, he is almost confident that he informed him the body of the note had been written at the time the note was signed. Affiant, however, is positive, and therefore states positively, that the said Philip Maysounave then and there informed him that the signature appended to said promissory note so held by said Lapique, and which was made payable to Louise Lagarde, was actually signed by him at the request of said Louise Lagarde, but that said Philip Maysounave stated that there was no consideration for the note, which fact Lapique knew, and for that reason he did not think Lapique was acting fairly towards him in holding it against him.” Under these circumstances, and considering the slightness of the evidence against the appellant, we think that justice demands that he should have the benefit of this evidence. No one can say that if introduced at the trial it would not have changed a verdict the correctness of which is so doubtful.

Under the above views it is not necessary to examine very closely the alleged errors committed by the court during the progress of the trial. It is clear, however, that an error was committed in admitting evidence of the financial condition of the prosecuting witness. The general rule is, that such evidence is inadmissible; and we do not think that this case is within any of the exceptions to the rule; and while in many cases such a ruling might be disregarded as unimportant, we cannot say that in so closely a balanced ease as the one at bar it was not prejudicial. The jury may also have been improperly influenced by the charge of the court to the jury that if the prosecution had not shown beyond a reasonable doubt “that the defendant had no authority to sign the name of Philip Maysounave, you must then acquit the defendant.” There was no evidence offered by appellant, and no pretense made by him, that he was authorized to sign Maysounave’s name to the note; his defense was that he did not sign it at all. Therefore, while the instruction was not in the abstract erroneous, and was one proper and necessary to be given in many cases, it was given in such an isolated manner in the case at bar that it may well have been taken by the jury as an intimation by the court that the appellant did actually sign the note, leaving only the question whether or not he was authorized to do so. No doubt, the court had no such intention, but we cannot say. how it affected the jury.

We think that there are no other points in the case necessary to be considered. It may be noticed, however, that the jury was probably influenced by the improper allowance of a question on the cross-examination of appellant, touching a former incident in his life, to which, however, no exception was taken.

The judgment and order appealed from are reversed and a new trial ordered.

Van Dyke, J., Harrison, J., Henshaw, J., and Temple, J., concurred.

Garoutte, J., concurred in the judgment.  