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1895.July 30.August 2and 9.
CAVE v. KRELTSZHEIM.P. C., Colombo, 38,081.
Evidence—Forgery—Comparison of handwriting in disputed document with
handwriting in genuine document.
In a case of forgery, a Judge sitting without a jury should not arriveat a decision on the comparison of handwritings without some proof thatthe handwriting of the disputed document is the handwriting of theaccused.
Bokser, C.J.—I am not satisfied that it was intended to allow a juryto find a man guilty of forgery, when no qualified witness could befound willing to state his belief that the alleged forgery was in thehandwriting of the accused.
Witherb, J. (with much hesitation).—It is permissible for a juryor Judge to bring in a verdict of guilty on the comparison' of a disputedhandwriting with a well-proved handwriting, unsupported by otherevidence as to the disputed handwriting.
But a decision of Judge or jury resting solely on a comparison ofother than ancient documents is dangerous.
f I ''HE complaint against the accused was that he committedcriminal breach of trust of certain goods entrusted to himas Value-Payable Parcel Register Clerk of Messrs. Cave & Co. ofColombo. At tlm inquiry it appeared that some of the goodsmentioned were parted with by Cave & Co. on the strength oftwo letters (marked C and D), which purported to come from oneFernando from Kandy. The first letter ordered the goods, and
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the second called attention to it, and it was proved that Fernandowas a fictitious person. Certain books (marked B and 0) keptby the accused and in his handwriting were also produced andreferred to by a witness for the prosecution. The Police Magis-trate thereupon framed three charges against the accused :—
Under section 457 of the Penal Code, that he committed
forgery of the letters C and D.
Under section 403 of the Penal Code, that he cheated
Cave & Co. and dishonestly induced them to deliver to
him certain goods.
Under section 391 of the Penal Code, that he committed
criminal breach of trust of the property.
The accused consented to be tried by the Police Magistrate,and after he had adduced evidence for the defence, the PoliceMagistrate found him guilty of having forged the two letters C andD, for the purpose of cheating and dishonestly inducing delivery ofproperty in question, and sentenced him to nine months’ rigorousimprisonment, observing : “ The articles mentioned in the charge“ under section 403 of the Penal Code were ordered by letter C;“ and this order was repeated by letter D. These two letters,“ I have not the slightest doubt, were written by one and the Bame“ person, and that person was the accused, the person who made“ the entries in the books B and G, which have been proved to“ have been made by the accused. There is a striking general“ similarity between the writing and each letter to the writing“ of the other, and between the writing of both letters to the“ writing of the entries in the books B and G; and a close“ examination with a glass discloses a similarity and an identity“ in detail which is more than a coincidence,” &c.
The accused appealed.
The appeal was argued first on the 30th July, 1895, whenPereira appeared for appellant and Van Langenberg for res-pondent. And the case having stood over for Pereira to furnishauthorities, it was argued again on the 2nd August, 1895, whenPereira appeared for appellant and Dornhorst for respondent.
Pereira, for appellant,—
The accused was originally charged with theft of certain articles.But the Police Magistrate charged him with forgery of thedocuments C and D and with cheating, and convicted him onthose charges. There was no evidence before him to justify thesecharges. He based his finding on the charge of forgery entirelyon a comparison of the documents C and D with certain other
18*5. documents produced by the complainant, not to prove hand-writing, but to prove the fact of certain entries made by theaccused. A Judge or jury may compare handwriting to test thecorrectness of opinions expressed by witnesses with regard to animpeached document, but. where no witness has given anyevidence as to impeached documents being forgeries, and whereit is not a part of the case for the prosecution that, the accusedforged such documents, it is not open to Judge or jury to discover,so to say, after the close of the whole case, evidence by comparisonof documents not produced expressly for purpose of comparison.The effect of the judgment of Blackburn, J., in Regina v. Harvey,is stated, in Archibald's Pleading and Evidence in CriminalCases, Slst ed., p. 312, to be that under section 8 of 28 Victoria,c. 18, the disputed handwriting and the writing whose genuine-ness is proved cannot be submitted to a jury in order that theymay draw their unaided conclusion from a comparison, but thatthey must be assisted by the evidence of an expert. Besides, theaccused in thiB case was taken by surprise. He had no reason toanticipate that the absence of evidence would be supplied by acomparison of handwriting by the Magistrate himself, and he hadno opportunity of stating to the Conrt his reasons against theconclusions drawn by the Magistrate by comparison of hand-writing.
Dornhurst, for the respondent,—
Comparison of handwriting may be made without the inter-vention of any witnesses at all, by the jury themselves, or in theevent of there being no jury by the Court (Taylor, 8th eel.,vol. II., p. 1585). According to the old law, only Judge or jurycan compare handwriting. The statute left the old law whereit was. [Bonseb, C.J.—There must be positive evidence that thedisputed writing is the writing of the accused.] According toSolita v. Yarrow (1 Moody and Robinson, 133) a jury may judgeof a disputed handwriting by comparing it with other documentsput in evidence for other purposes, and admitted to be of thehandwriting of the party. [Bonser, C.J.—But Mr. Pereira saysthat there is no evidence whatever that the documents were inaccused’s handwriting.] But it is open to the Court, neverthe-less, to compare. Again, according to Griffith v. Williams(J Crompton and Jervis, p. 47), the rule that comparison of hand-writing is not evidence does not extend so far as to prevent Judgeor jury from instituting a comparison between two documents
of which primd facie evidence has been given.
Pereira in reply.
Car. ailv. vult.
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9th August, 1895. Withers, J.—189#.
In this case the appellant has been convicted by Mr Moor, Withers, J.the Police Magistrate of Colombo, of the offence of forgingtwo letters, and of the offence of cheating by meanB of thoseletters.
The main question which we have to decide is whether theevidence sustains the conviction of forgery.
In the information which founded these criminal proceedingsthe accused was charged with criminally misappropriating certainarticles entrusted to him by Mr. S. Cave.
At the close of the case for the prosecution, the Magistrate,considering that a primd facie case had been made out againstr the appellant of the offence of forgery and cheating, charged himaccordingly, and called on him to answer these charges.
In the course of the inquiry into the original charge of crimi-nal misappropriation two books were produced, which wereproved to the satisfaction of the Magistrate to contain entries inthe handwriting of the accused. The Magistrate founded hisjudgment on a comparison of the imputed with the genuine hand-writing. He had no doubt that the man who wrote the one wrotethe other, and, so believing, he convicted the accused of forgingthe letters C and I).
It was urged by appellant’s counsel that a Judge or jury couldnot bring in a verdict of guilt}- upon the mere comparison of agenuine with a controverted writing ; that before any such com-parison could be made some foundation of proof must be laidas to the disputed writing being in the hand of the partyaccused.
In this case, no one acquainted with the accused’s handwritingwas called to swear to his belief that the letters C and D werein the accused’s handwriting. Nor was any expert or skilledwitness called to compare the genuine with the imputed hand-writing, and state upon oath that he believed that both writingswere in the hand of one and the same person. In support of hiscontention, appellant’s counsel cited the case of Regina v. Williamand Henry Harvey reported in Cox, C. L. Cases, vol. XI., p. 546.
These prisoners were indicted for forging and uttering a cheque,and the case against Henry Harvey rested on the evidence of somecopy books found by a policeman at that prisoner’s house, thehandwriting of which, it was contended, corresponded with thewriting on the cheque. The prisoner’s counsel objected to theevidence, on the ground that police officers and constables werenot competent to give evidence as experts.
W 8 BUS, J.
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Blackburn, J., who presided at the trial, is reported to haveobserved as follows :—
The jury can inspect them and compare them with the forged document.But still they are only copy books, which go no further than to show thatthe prisoner was taught writing. I think the evidence is very weak,and I do not think the jury ought to act upon it without the assistance ofan expert. The policeman is certainly not a skilled witness, and, accordingto Regina v. William, not a competent one. Mr. Cherry drew attention to28 Victoria, c. 18, section 8, which enacts that “comparison of a disputed“ writing with any writing proved to the satisfaction of the Judge to be“ genuine, shall be permitted to be made by witnesses, and such writing and“ the evidence of witnesses respecting the same may be submitted to the“ Court and jury as evidence of the genuineness or otherwise of the writing“ in dispute.” But here we have no expert, and I do not think it would beright to let the jury compare the handwriting without some such assistance.The evidence is very slight.
The learned Judge seems to have regarded the copy books asvery slender evidence of the prisoner’s handwriting, and he wasnot minded to submit them to the jury for comparison withoutthe aid of an expert in handwriting.
I gather from the report that he would have let them go to thejury for comparison if he had been satisfied that the books werein the prisoner’s handwriting. If I am right, this case is ratheragainst Mr. Pereira. The Act of 28 Victoria, c. 18, section8, was passed to bring the criminal law on the subject inconformity with the practice in civil cases under the CommonLaw Procedure Act, 1854, section 27, which is identical with theformer.
Taylor's comment on these Acts in the 8th edition of his workis that the comparison of a writing, proved to the satisfaction ofa Judge to be genuine, may be mado either by witnesses acquaintedwith the handwriting, or by witnesses skilled in deciphering, orwithout the intervention of any witnesses at all by the jurythemselves, or in the event of there being no jury, by the Court.He cites in support of his opinion the case of Cobbett v. Kilminster(4, Foster and Finlayson, per Martin B), which is thus referredto in Fisher'8 Common Law Digest, vol. 3, p. 1440 :—
The question being whether a memorandum was in the handwriting ofthe defendant, and he, in the course of cross-examination, having been gotto write something on a piece of paper, this was allowed to be shown to thejury for the purpose of comparison of handwriting.
The law laid down in Allport v. Meek (4, Carrington and Payne,p. 267) is, he considers, no longer law. This was an action ofassumpsit on a bill accepted by the defendant drawn and endorsedby one Williams. The witnesses called to prove the handwritingof Williams said that neither the drawing nor the indorsement
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was written by him. It was then proved that the defendant hadacknowledged the acceptance to be his, and this being in mercan-tile law a conclusive admission as against the acceptor of thedrawer’s signature, it was contended that the jury might look atthe indorsement and compare it with the drawing. Tindal, C.J.,would not allow this to be done, observing, “ I think you must“ call some witness to lay some evidence before the jury on which“ they may decide.” This decision was in the year 1830. It is to beobserved that in this case the admission on the one side was metby counter-evidence on the part of the plaintiff, so that therewas really no standard of comparison. 1 Moody and Robinson,p. 133 (Solita v. Yarrow), referred to in the course of argument,is thus summed up in the head note : “ A jury may judge of a“ disputed handwriting by comparing it with other documents in“ evidence for other purposes and admitted to be the handwriting“ of the party.” In that case evidence had been received for andagainst the genuineness of the writing used as a standard ofcomparison. In Griffith v. Williams (1, Crompton and Jervis,p. 47), alBO referred to in argument, it was decided per curiamthat where two documents are in evidence it is competent for theJudge or jury to compare them. This was an action for breachof promise to marry, and the plaintiff having put in severalletters of the defendant which were admitted, endeavoured toprove another letter of an important character as written byhim. This was met by counter-evidence on the part of thedefendant.
The old English law no doubt allowed ancient deeds to beput in for the purpose of comparing the seals with those of a dis-puted deed, and these might be compared by Judge and jury. Thatwas permitted, as the Judges in Doe dem. Mudd v. Suckermore(5, Adolphus and Ellis, p. 703) observe, on the ground of necessity.The later English law referred to allows comparison by jury orwitnesses of any other documents except those already in thecase.
As to comparison by a jury of handwriting produced in thecause for other purposes than the question of authenticity of adisputed document, Lord Denman observed in Doe dem.Perry v. Newton (5, Adolphus and Ellis, p. 516) that thecomparison was unavoidable, “there being two documents in“ question in the cause, one of which is known to be in the“ handwriting of the party, the other alleged, but denied to be so,“ no human power can prevent the jury from comparing them
with a view to the question of genuineness, and therefore it is“ best for the Court to enter with the jury into that inquiry and
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"to do the best it can under circumstances 'which cannot be“helped.” He added, “The best rule is, that comparison of“ writings by the jury shall not be allowed in any case where it“ can be avoided. When we consider that the same course which is“ permitted in a case like this may also be resorted to in a criminal“ case for the purpose of a conviction, we cannot draw the limit“ too carefully.” In this case the will of Mr. John Brockbank wasdisputed, and in the course of the trial the plaintiff’s counsel,in cross-examining one of the defendant’s witnesses, put into hishand some letters, which the witness said he believed from thecharacter to be of Brockbank’s handwriting. It was afterwardsproposed on behalf of the plaintiff to Bubmit these letters to thejury, in order that they might compare them with the disputedsignature, and thereby judge both of its genuineness and of1the credit due to the witnesses on this subject. The letterswere not in evidence for any other purpose. The Judge wouldnot allow them to be put in, and his order was sustained by theCourt of King’s Bench. This was in 1836. It is clear that thestatute of 28 Victoria has altered that law.
Qiving my best consideration to the arguments adduced to usand to the cases before referred to, I come with no little hesita-tion to the conclusion that jury or Judge may bring in a verdictof guilty on the comparison of a disputed with a well-provedhandwriting, unsupported by other evidence as to the disputedhandwriting. I think, however, that a decision resting solely oncomparison by Judge or jury of other than ancient documents isof a very dangerous character, and speaking for myself I shouldnot venture, as a Judge sitting without a jury, to arrive at adecision solely on the comparison of two or more documents. Ithink some foundation of proof as to the handwriting of the dis-puted document should first be laid before a Judge should actupon his own comparison.
Another point of importance was pressed upon us by Mr.Pereira. He urged that his client had not sufficient opportunitygiven to him to meet the altered charge of forgery. The judg-ment by comparison of the incriminated letters with certainentries in books alleged to have been made by him, it was urged,took the prisoner by surprise. Not anticipating that the Magis-trate would found his judgment pronouncing him guilty of forgeryon such comparison, he did not show cause against the valuoof that evidence on which he was convicted. He may, for all Iknow, have contested the writing in the books alleged to be in hishandwriting.
I think he should have a further opportunity of meeting the
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charge of forgery, and indeed I think evidence should at least be 1896.called for as to the handwriting of the imputed papers before he Bnvm n jis required to meet the charge, and I would accordingly qnash theconviction and remit the case for further trial on the charges offorgery and cheating.
I agree that there should be a new trial in this case. At thesame time I doubt whether the statutes Victoria, c. 18, section 8,has the effect that Mr. Taylor in his work on Evidence, ascribes to it.The question is not one of much practical importance, for I do notthink that the case of a man being convicted of forgery solely onthe evidence afforded by a comparison of written documents, with-out any testimony either of experts or of persons acquainted withhis handwriting, has ever before occurred or is likely to occur again.The statute appears to me to have been passed to facilitate proofof handwriting in two ways—first, by allowing written, documentsto be put in evidence merely for the purpose of comparison withthe disputed document, although they were not evidence for anyother purpose; and secondly, by admitting the evidence of personswho were not acquainted with the handwriting of the personcharged, but who, as experts, could give their opinion based on acomparison of an admitted writing with disputed writings.
I am not satisfied that it was intended to allow a jury to find aman guilty of forgery, when no qualified witness could be foundwilling to pledge his oath to his belief that the alleged forgerywas in the handwriting of the accused.
I would add that this case, involving as it does questions as tothe course of business in a shop, seems to me to be one whichshould be tried with the assistance of some persons who areacquainted with the way in which business is carried on in thistown, and it should therefore be tried cither in this Court or bythe District Judge of Colombo with assessors.
Remitted for new trial.
CAVE v. KRELTSZHEIM