
    State of Missouri, Defendant in Error, v. Samuel W. Scott, Plaintiff in Error.
    1. Grimes and punishments — Passing forged cheeks — Evidence — Handwriting— Comparison. — In an action for passing a counterfeit or forged bank chock, where the signature and indorsement were positively proved and no other papers were introduced in evidence for the purpose of admitting testimony by comparison, it was competent to submit the whole paper to the jury, with or without the aid of experts, for them to form their own eonclu- ■ sion as to whether the whole instrument thereon was produced by one and the same hand.
    2. Practice, criminal — Trial — Re-trial at same term where no verdict. — A prisoner may be again pat on trial at the same term where the first trial has not resulted in a verdict.
    
      
      Error to First District Court.
    
    
      Budd, for plaintiff in error.
    A witness can not testify to the handwriting of a party from mere comparison with other writing proved to he genuine. (2 Phillips on Ev. 609-615, and notes; 4 Blackst. 358 ; The People v. Spooner, 1 Denio, 343; Jackson v. Phillips, 9 Cow. 112; Wilson v. Kirkland, 5 Hill, 182; Clark v. Wyatt, 15 Ind. 271; Jumpertz v. People, 21 Ill. 375; Bishop v. State, 30 Ala. 34; McNair v. Commonwealth, 26 Penn. St. 388 ; Outlaw v. Hurdle, 1 Jones, Laws N. C., 150; Hawkins v. Grimes, 13 B. Monr. 258, 267; Kinney v. Elynn, 2 R. I. 319; Smith v. Walton, .8 Gill, 77; McAllister v. McAllister, 7 B. Monr. 269; Pope v. Askew, 1 Ired. 16; Page v. Homans, 2 Shep. 478; Bank of Pennsylvania v. Holdeman, 1- Penn. 161; Hawkins v. Stuyvesant, Anthon, 97 \ State v. Givens, 5 Ala. 747; Bell v. Harper, Holt, 421.)
    
      H. B. Johnson, attorney-general, for defendant in error.
    The handwriting of two documents, or different portions of the same document, when they are already in evidence for other purposes, may be compared by the jury, with the aid of experts, for the purpose of showing that they were both written by the same person. (Doe v. Suckermore, 4 A. & E. 703 ; Hammond’s case, 2 Greene, 33 ; Smith v. Sainsbury, 5 C. & P. 195 ; Cater’s case, 4 Esp. 177; Griffiths v. Williams, 1 C. &. J. 47; Sólita v. Yarrow, 1 Mood. & R. 133 ; Doe v. Newton, 5 Ad. & El. 514; Bromage v. Rice, 7 C. &. P. 548; Commonwealth v. Carey, 2 Pick. 47; Moodey v. Rowell, 17 Pick. 490-; Hicks v. Person, 19 Ohio, 426; Richardson v. Newcomb, 21 Pick. 315; Lyon v. Lyman, 9 Conn. 55 ; Goodtitle v. Braham, 4 Tenn.,497 ; Wad-dington v. Cousins, 7 C. & P. 595; Yan Wick v. McIntosh,’ 14 N. Y. 439 ; 1 Greenl. Ev., 12th ed., §§ 578-581; Depue v. Place, 7 Barr. 428 ; Rogers v. Shaler, Anthon, 109 ; Brooks v. Tich-borne, 2 Eng. L. & Eq. 374.)
   Wagner, Judge,

delivered tbe opinion of tbe court.

Tbe defendant was indicted and convicted in tbe Jacltson County Circuit Court for passing a counterfeit and forged bank check. Tbe main question bere is tbe action of tbe court in admitting testimony on tbe part of tbe State. Tbe check purported to be drawn on tbe Lexington (Ky.) National Bank, and was signed with tbe name of Geo. B. Lucas, as maker, and the name of tbe defendant was inserted in the body as payee. Tbe defendant indorsed and delivered tbe check to one Sheridan, who saw him write tbe indorsement, and be afterward acknowledged that be wrote tbe check himself, and that Lucas was a myth, there being no such person in existence. On tbe trial, tbe State introduced two witnesses, who were bankers and who were permitted to state that in their opinion the indorsement and the check were, in the same bandwriting. This was objected to by defendant, and tbe objection overruled. Tbe paper T^as then submitted to tbe jury for their examination. All evidence of bandwriting, except where tbe witness saw tbe document written, is in its nature comparison, and founded upon opinion. It is tbe belief which tbe witness entertains, upon comparing tbe writing in question with its exemplar in bis mind, derived from some previous knowledge. It is agreed that if tbe witness has tbe proper knowledge of tbe party’s handwriting, be may declare bis belief in regard to tbe genuineness of tbe writing in question. Tbe point upon which courts have differed in opinion is upon tbe source from which this knowlege is derived, rather than as to tbe degree or extent of it. (1 Greenl. Ev. § 576.)

Tbe modes of acquiring this knowledge, so as to permit tbe witness to testify as to tbe genuineness of tbe bandwriting, are: first, by having seen -the person write; and it is held sufficient for this purpose that tbe witness has seen him write but once, and then only bis name. The proof in such case would be very light, but it would be proper for tbe jury to weigh it. The other mode is, from having seen letters, bills, or other documents, purporting to be tbe bandwriting of tbe party, and having afterward personally communicated with him respecting them.

In Reyburn v. Bellotti, 10 Mo. 597, it was held that a witness may acquire suck knowledge o£ a person’s handwriting as to authorize him to testify to his signature by haying seen his letters on business with a firm of which witness was clerk, and finding that he acted upon and recognized the letters.

But Greenleaf says the rule as aboye stated has been relaxed in two cases: first, where writings are of such antiquity that living witnesses can not be had, and yet are not so old as to prove themselves. Here the course is to produce other documents, either admitted to be genuine or proved to have been respected and treated and acted upon as such by all parties; and to call experts to compare them, and to testify their opinion concerning-the genuineness of the instrument in question. Second, where-other writings, admitted to be genuine, are already in the case. Here the comparison may be made by the jury, with or without the aid of experts. The reason assigned for this is, that as the jury are entitled to look at such writings for one purpose, it is better to permit them, under the advice and direction of the-the court, to examine them for all purposes, than to embarrass-them with impracticable distinctions to the peril of the cause. (1 Greenl. Ev. § 578.)

So Phillips, in commenting on the question, says : “Within a recent period a rule has been established which amounts to a considerable relaxation of the strictness of the law in regard to the the direct comparison of handwriting. Upon a question respecting the identity of handwriting, the jury may be allowed to take-other papers which have been proved to be in the writing of the party whose handwriting is disputed (provided they are part of the proofs in the cause), and may compare them with the disputed writing, for the purpose of forming their opinion whether the-disputed writing is genuine.” (2 Phil. Ev., ed. 1859, p. 615.) This is now the recognized principle in England, and has been followed in many of the American cases. (Hicks v. Parson, 19 Ohio, 426; Bowman v. Sanborn, 5 Fost. 87; Henderson v. Hackney, 16 Ga. 521.)

In Vermont, genuine signatures are allowed to go to the jury for comparison. (Adams v. Field, 21 Verm. 256.) The strongest and best reason in support of the rule for rejecting evidence founded on comparison of handwritings in ordinary cases, is that the writings, intended as specimens to be compared with the disputed paper, would be brought together by a party to the suit, who is interested to select such writings only as may best subserve his purpose, and that they are not likely, therefore, to exhibit a fair specimen of the general character of handwriting. And it may be further said that this species of evidence might cause inconvenience by raising numerous collateral issues, and often come by surprise against the party to be affected by it.

But the case we are now considering seems to come within the exception or relaxation of the rule as stated by Greenleaf and Phillips. There was no collateral issue raised, nor any irrelevant or outside paper or writing introduced for the purpose of admitting testimony by comparison. The forged check was the exact paper in evidence, and, independently of the acknowledgment of the prisoner, the indorsement and signature were positively proved, and it was competent to submit the whole paper to the jury, with or without the aid of experts, for them to form their own conclusion as to whether the whole instrument, with the indorsement thereon, was produced by one and the same hand.

The defendant was tried twice at the same term. On the first trial the jury disagreed and were discharged. Another jury was empanneled, without objection ; he pleaded not guilty; was regularly tried and convicted. I am not aware that any error was committed in this. I know of no law which prohibits the court from again putting the prisoner on trial at the same term, when the first trial has not resulted in a verdict. The record does not .show that he suffered any injustice by the proceeding. He acquiesced in it at the time, and "we see no reason to interfere on that ■account.

Judgment affirmed.

The other judges concur.  