
    Koons v. The State.
    1. The genuineness of a writing was in controversy in a cause, and an expert, called as a witness, stated, in connection with his opinion, which opinion was material upon the matters so in controversy, certain facts upon which the opinion was founded, and the court afterward excluded from the consideration of the jury such facts, but refused to' exclude the opinion. Held, that this was error. ^
    :2. On the trial of a party charged with uttering and publishing a check as ’ true and genuine, an expert was called for the state, who had seen the alleged forged check several months previously, and to whom a genuine signature of the accused was shown on such trial. Held, that, the state being unable to produce such check, the presence of such check on the trial was not indispensable to the competency of the witness to testify to the fact that the check and signature were in the same handwriting.
    -'3. Whore, on the trial of one charged with uttering a forged check, signed “ John B. Brown,” an expert in handwriting who had seen the check several months previously, but had never seen' the accused write, and was not acquainted with his handwriting, was called as a witness, and a genuine signature of the accused, “C. S. Koons,” was exhibited to him, which furnished the only knowledge he had of the handwriting of the accused, Held, that before the witness should be allowed to give his opinion to the jury as to whether the check and signature were written by the same person, it ought to appear to the court, from an examination of the witness, that the signature of the accused constituted a sufficient basis upon which the witness could form an opinion whether the check was in the handwriting of the accused.
    Error to the Court of Common Pleas of Athens County.
    At the June term, 1880, of the court of common pleas of .Athens county, the grand jury returned into court an indictment, which they had found against Cyrus S. Koons; charging him, in the first count, with having forged a check in the preceding March, and in the second count, with uttering and publishing, as true and genuine, a check, knowing the same to have been forged, the latter offense also being alleged to have been committed in the preceding March. The defendant pleaded not guilty, and, at the same term, was placed on trial. :The verdict was that Koons was not guilty as charged in the first count, but that he was guilty’as charged in the second count of the indictment. A motion for a new trial having been overruled, Koons was sentenced to the penitentiary for the term of five years.
    The forged check, as set forth in the indictment, was in these words and figures :
    “ Athens, Ohio, March 25, 1880.
    “ Bank of Athens, pay to J. B. Ellis or bearer, five hundred and forty dollars. John B. Brown.”
    On the trial several bills of exception were taken. In one of these it is stated that the state called James D. Brown as a witness, who testified that he was a. banker, skilled in the comparison and examination of handwritings; that he was then cashier and manager of the Bank of Athens ; that he was present in the bank on March 31, 1880, when Koons presented the above-mentioned check for payment; that he was familiar with the genuine signature of John B. Brown, and that, in his ojfinion, the signature on said check was not the genuine signature of John B. Brown. The check was handed back to Koons and the witness had not seen it since. The check was not produced in court. The witness further stated that he had no knowledge or acquaintance with the handwriting in the alleged forged check, and that he never saw the defendant write, nor was he familiar with his handwriting. Thereupon a promissory note in the following words and figures was shown to the witness:
    “ $43.59. June 20, 1871.
    “ One day after date I promise to pay Patterson & Curfman, or bearer, the sum of forty-three dollars and 59 cts. with' eight ' pe/ cent., for value received. O. 8. Koons.”
    The defendant admitted that the signature “ G. S. Koons ” was written by him, and the prosecuting attorney admitted that the filling up of said note was not written by said Koons. The witness said that he had never seen the said signature of said Kpons, nor any other signature of his until that day. The prosecuting attorney then said to the witness: “ Look at the signature ‘ C. -S. Koons/ in this note, and say if the liandwritlng of the check signed John B. Brown, and presented to you March 31, wTas the same as this signature.” The defendant objected to the question, the court overruled the objection, and the witness answered: “ The signature to this note, ‘ O. S. Noons,’ has a similarity to the handwriting of the check.” The defendant moved the court to rule out the answer, but the ■court refused to do so, and permitted the same to go to the jury. And the defendant excepted to the ruling of the court both in permitting the question to be answered and in refusing to rule ■out the answer. The prosecuting attorney further asked the witness : “ State whether or not, in your opinion, the signature to the note, and' handwriting and signature to the check, are in the same handwriting.” To this question the defendant objected, but the court overruled the objection and the defendant •excepted. The witness answered, “ I should think they probably were.” And the witness further said, “ My remembrance of the check, and my examination of certain other papers brought to me by Mr. Wolf since the check was presented, makes me think so.” The defendant objecting, the court ruled out the following: My remembrance of the check, and my examination of certain other papers brought to tne by Mr. Wolf since the check was presented, makes me think so.” The defendant ■objected to ruling out those words unless the whole answer of the witness should be ruled out, but the court overruled the objection and the defendant excepted.
    Further, to maintain the issue, the state called R. H. Stewart, wdio testified that he was an expert in the examination of handwriting, and was a clerk in the Bank of Athens when the .alleged forged check was presented, and examined it; that he ■did not recognize the handwriting, but was sure the signature, John B. Brown, was not genuine; that he had never seen the defendant write, nor had he seen the signature of C. S. Noons ■until then, nor had he seen the alleged forged check since March 31. And thereupon the above-mentioned note to Patterson <fc Curfman was shown to the witness, and, against the •objection of the defendant, the court permitted the witness to .state that there was a similarity between the handwriting in .■said check, and the signature “ G. S. Noons,” to_the note ; and, over like objection of the defendant, the witness was allowed testate that in his opinion the forged check and the signature “ O. S. Koons ” “ were probably in the same handwriting.”' The defendant asked the court to rule out and exclude said-testimony of Stewart, but the court refused, and permitted the same to go to the j ury, and the defendant excepted.
    In the motion for a new trial, which was overruled, the admission of the testimony of Brown and Stewart were assigned, as ground for the motion, and it was further assigned as ground for such new trial, in the same motion, and the truth of which was shown, that the sheriff of the county and his deputy had given evidence material for the state on the trial of the cause, and that during the deliberations of the jury, in the room where they were considering of their verdict, the sheriff was present a considerable portion, and the deputy the remaining-portion of the time. It appeared that the room was a hall,, sixty by eighty feet, but it does not appeal1 whether.the sheriff or his deputy heard the deliberations of the jury, nor does it appear that the jury were under any restraint in their deliberations, by reason of the presence of those witnesses.
    On motion, leave was given to file, in this court, a petition, in error to reverse the aforesaid judgment.
    
      Grosenor <& Jones, for plaintiff in error :
    As to the admission of evidence of experts as to the comparison of handwriting, see 1 Hawks, 6 ; 11 Mass. 313; 32 Ind. 474; 43 Ind. 386 ; 13 Gray, 527; 7 Gray, 177; 1 Cush. 219 ; 1 Greenl. Ev. 13 ed. § 5, 76; 1 Wharton Ev. 704; N. W. Law Reporter, June 10, 1880; 22 Albany Law J. No. 19 (N. Y. Court of Appeals, September 21, 1880).
    
      Emmett Thompson, prosecuting attorney, for the state:
    There was no error in the admission of the evidence of Brown and Stewart. 1 Disney, 539, 544, 547 ; 5 Foster (N. H.) 87; 52 Maine, 9; 17 N. H. 71; 4 Gilman (Ill.) 85; 8 Gill (Md.) 77, 87 ; 54 N. Y. 398. Nor is the form of their answer objectionable. 23 Penn. St. (11 Harris) 413 ; 4 Dev. & Batt. 236. Nor was the absence'of the check any objection. 41 Ala. 626 ; 40 Ill. 346 ; 46 N. H. 497; State v. Carr, 5 N. H. 367; 5 Hamm. 5 ; 2 Pick. 47; 1 D. Chip. (Vt.) 295 ; Brayt. 78; 9 Conn. 242; Id. 55; 12 Wall. 317; 22 Kan. 250; 31 Am. Rep. 186.
   Okey, J.

Whatever uncertainty there was in the law of England as to the proof of handwriting by comparison, was removed by the statute 17 and 18 Vict. c. 125, c. 27; 28 Vict. c. 18, s. 8. The only question there is as to the proper construction ■ of those statutes. They provide, in substance, that comparison of a disputed handwriting with any writing proved to the satisfaction of the judge to' be genuine, is permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted ■to any court and jury as evidence of the genuineness or otherwise of the writing in dispute. In this state, independently of statute, it has been settled that standards of comparison may be used by experts called as witnesses upon the trial of an issue as to the genuineness of a' signature, yet the standard of comparison, when not already a paper in the case, or admitted to be genuine, must be clearly proved by persons who testify directly to its having been written by the party. Bragg v. Colwell, 19 Ohio St. 407; Pavey v. Pavey, 30 Ohio St. 600. Evidence of this character is 1’eceived with caution, and there is a very general disposition in the courts to regard such testimony, as a general rule, of a weak and unsatisfactory character. Still the admissibility of such evidence is for the court, its weight for the jury. Nevertheless, to render it admissible it is quite clear that all the facts upon which the expert forms his opinion should be before the court and jury, to the end that they should determine, as far as they may be able to do so, whether the opinion .given is well founded, and so that the opposing counsel may have an opportunity to cross-examine as to such facts. Here, after the witness Brown had been inquired of, whether the signature to a certain note and the writing in the check alleged to have been forged were in the same handwriting, and he had answered, I should think they probably were,” and had added, in answer to the same question, “My remembrance of the check and my examination of certain, other papers brought to me by Mr. Wolf since the check was presented makes me think so.” The court excluded the latter part of the answer, which was the predicate of his opinion, but refused to exclude the first portion of-the answer, in which he states his conclusion. We are all of opinion that in so holding, the court below erred. The court and jury were, as I have said, entitled to consider the grounds of the opinion, and the defendant’s counsel clearly had a right to cross-examine the witness as to such ground of belief.

In so holding, however, we do not hold the witness was precluded from giving an opinion, on the ground that the check was not produced at the trial. Where the counsel for the state have endeavored to obtain the alleged forged instrument, and failed, its absence can have no other effect on the trial than to render a conviction more difficult.

The court also erred in admitting the testimony of Stewart. That witness testified that he was an expert in the examination of handwriting and had examined the alleged forged check when -it was presented at the bank ; that he did not recognize the handwriting, but was sure that the signature to it was not that of John B. Brown ; that he had never seen the defendant write, nor had he seen the signature of C. S. Koons until now, nor had he seen the alleged forged check since March 31. The note to Patterson & Curfman, mentioned in the statement of the case, was then shown to the witness, and he was permitted to state that the forged check and the signature to the note “ were probably in the same handwriting.” Row, in the opinion of a majority of the court, the witness had not qualified himself to express the opinion so given. It must appear, before such opinion is called for, that the witness has formed, or is then able to form, an opinion upon the matter in question. No such qualification appears anywhere in this record, and in the absence of it we hold that the opinion given was improperly received.

In view of the fact that the judgment must be reversed, and the cause remanded for a new trial, fo^ the reasons stated, it is unnecessary to determine whether the act of the sheriff and Ms deputy, who had testified .in the cause on behalf of the state, in remaining in the room where the jury were deliberating, affords of itself ground of reversal. But we all unite in condemning such acts. The jury should be left free to con-eider the case and find their verdict unrestrained by the presence of any person, and especially the presence of those who testified as witnesses in the catase, and upon -whose testimony the jury might desire to comment.

Judgment reversed,.  