46 Its immaterial that it is badly written, if it is decipherable.** meaning may be ascertained by parol evidence; and, if it is ambiguous, the jury may infer its true meaning from all the evidence. Where the alleged forged writing is shown to have been lost or destroyed, or is beyond the jurisdiction or suppressed by the accused, or if it is so mutilated that its identity is unascertainable, its contents may be proved by secondary evidence. If the state alleges that the writing is in the hands of the accused, or his friends, it must prove a seasonable demand on him or his counsel before secondary evidence is admissible. In order that the contents of the forged writing or its signature shall be proved by secondary evidence it is necessary to show that a diligent search has been made for the original in a place where it was likely to be found. The best evidence in the possession of the state is always required. If a copy exists, oral proof will be rejected, and the copy must be produced. 19 48 49 A photograph is admissible to prove the language of the writ Cr. Pr. & Pl. 395; 2 Bish. Cr. Pro., 45 McGarr v. State, 75 Ga. 155, 158. "Thornley v. State, 36 Tex. Cr. 118, 34 S. W. 264, 61 Am. St. 837; Mead v. State, 53 N. J. L. 601, 605, 23 Atl. 264; State v. Potts, 9 N. J. L. 26, 17 Am. Dec. 449; State v. Davis, 69 N. Car. 313, 317; Henderson v. State, 14 Tex. 503, 511. See Underhill on Ev., § 130, 132; State v. Champoux, 33 Wash. 339, 74 Pac. 557. "State v. Lowry, 42 W. Va. 205, 24 S. E. 561; Rollins v. State, 21 Tex. App. 148, 152, 17 S. W. 466; Henderson v. State, 14 Tex. 503, 511; Devere v. State, 5 Ohio Cir. Ct. 509; Johnson v. State, 9 Tex. App. 249, 258; State v. Flanders, 118 Mo. 227, 237, 239, 23 S. W. 1086; State v. Saunders, 68 Iowa 370, 27 N. W. 455; State v. Potts, 9 N. J. L. 26, 17 Am. Dec. 449; 3 Greenl. Ev., § 107; 2 Bish. Cr. Pro., § 433; 2 Arch. Cr. Pr. & Pl. 555; Rex v. Haworth, 4 Car. & P. 254. On the general subject of notice to produce writings, see Underhill on Ev., § 126. 48 Sims v. State (Ala., 1908), 46 So. 493. 49 Thompson v. State, 30 Ala. 28; Commonwealth v. Snell, 3 Mass. 82, 86; Pendleton's Case, 4 Leigh (Va.) 694, 26 Am. Dec. 342; State v. Ford, 2 Root (Conn.) 93. When it is sought to prove the forged paper by a certified or examined copy, under a statute permitting such proof, it must appear from the copy itself that all the requirements of the statute have been rigidly complied with, or the copy may be rejected. The copy should be supplemented by the oath of some competent witness that it is a true and correct copy. Underhill on Ev., § 142c; Johnson v. State, 9 Tex. App. 249, 258. ing when the ink has faded, if it is shown by any witness that it is literally reproduced. But when the question is, does the photograph exactly reproduce the form, color and shading of the original? supplementary expert evidence may be required.50 51 § 426. Proving the venue. The difficulty of proving the locality in which the writing was actually forged, because of the customary secrecy by which this act is accompanied, is elsewhere adverted to. It need only be said in this place that the possession of forged instruments, or the uttering of them in the county where the indictment was found, is strong evidence in law that the forgery was committed in the same county.52 53 § 427. Fictitious names-Evidence to prove existence or non-existence of persons.-Forgery is committed when a fictitious name, or the name of a dead person,54 is signed to an instrument with a fraudulent intent. The name signed must be that of some other person than the accused though it may be of a man of the same name, if by signing that name the accused meant to defraud someone.55 Hence, evidence is relevant, which shows or tends to show the existence or non-existence of the person who is supposed, or pretended to be indicated by the name. But the state need not prove beyond a reasonable doubt that there was no such 52 State v. Yerger, 86 Mo. 33; State v. Rucker, 93 Mo. 88, 90, 5 S. W. 609; Spencer's Case, 2 Leigh (Va.) 751, 757; Heard v. State, 121 Ga. 138, 48 S. E. 905. 53 Lascelles v. State, 90 Ga. 347, 16 S. E. 945, 35 Am. St. 216; Rex v. Bolland, I Leach C. C. 97; Ex parte Hibbs, 26 Fed. 421, 423; Johnson v. State, 35 Tex. Cr. 271, 33 S. W. 231; State v. Hahn, 38 La. Ann. 169, 170; People v. Krummer, 4 Park. Cr. (N. Y.) 217; State v. Minton, 116 Mo. 605, 610, 22 S. W. 808; State v. Vineyard, 16 Mont. 138, 40 Pac. 173, 175; People v. Brown, 72 N. Y. 571, 28 Am. 183; Commonwealth v. Costello, 120 Mass. 358, 370; Thompson v. State, 49 Ala. 16; Peete v. State, 2 Lea (Tenn.) 513; State v. Covington, 94 N. Car. 913, 55 Am. 650n; State v. Bauman, 52 Iowa 68, 2 N. W. 956; People v. Warner, 104 Mich. 337, 62 N. W. 405, 406; Davis v. State, 34 Tex. Cr. 117, 29 S. W. 478; Lasister v. State, 49 Tex. Cr. 532, 94 S. W. 233; People v. Browne, 118 App. Div. (N. Y.) 793, 103 N. Y. S. 903; Logan v. United States, 123 Fed. 291, 59 C. C. A. 476; Maloney v. State (Ark., 1909), 121 S. W. 728. Brewer v. State, 32 Tex. Cr. 74. 22 S. W. 41, 40 Am. St. 760. 55 Murphy v. State, 49 Tex. Cr. 488, 93 S. W. 543. 56 59 person. A resident of the town in which he is alleged to have lived is competent to prove that he was unknown there, though the witness may not be able to swear absolutely that he knew every resident.57 It is not always necessary for the prosecution to produce in court the person whose name is alleged to have been forged. The fact that he did not consent to the signing of his name may be proved from the circumstances.58 It may be shown in general that policemen, postmen and residents had never heard of him, and that an officer of the court, as a sheriff, though he made a diligent search among persons most likely to know him, was unable to find him, or to secure any information of his whereabouts. The searcher may state what he did and the fact that he had a conversation with some one, and with whom, and could get no information, though he may not repeat answers made to his inquiries (as these would be hearsay) for the purpose of proving the fictitious character of the person. Evidence of this sort, proving prima facie the non-existence of the person whose name was signed, may be sufficient in the absence of rebuttal. The defendant may prove any facts by which the inference that the name is fictitious may be overcome. So, when it 60 61 was shown that no one could be found to answer to the name which was signed, the accused was allowed to show that the person, being threatened with a criminal prosecution, had left the state, and that he had endeavored in vain to find him.62 $428. Proving the corporate existence of the bank upon which the forged check is drawn.-The existence of the bank must be 'State v. Allen, 116 Mo. 548, 22 S. state may prove the falsity of that person's statement regarding his busi W. 792. "Commonwealth v. Meserve, 154 ness, residence, occupation and ownership of property. This is so, even Mass. 64, 71, 27 N. E. 997, 998. "People v. Browne, 118 App. Div. when the accused admits the name is shown under an allegation of forging bank notes or checks.63 The charter or articles of incorporation need not be produced. It is enough to prove the existence of the bank de facto by parol evidence that it had a banking house, issued bills and exercised banking powers, or by the production of a note whose genuineness is proved or admitted, and in the case of a foreign bank by reputation, whether the intent charged was to defraud the bank or an individual." 66 64 67 65 § 429. Proving the handwriting-Expert evidence-Standards of comparison.—Expert evidence is admissible to prove the genuineness or falsity of the writing. The expert may testify to his opinion and may then state the reasons for his opinion.s He may explain how writing may be removed from paper by chemicals or other means, and the blank space filled with other writing; and this he may do even where it has not first been proved that the accused was acquainted with this method of treating writings." The expert may illustrate his testimony by illustrations on the blackboard. The expert may, as a rule, state his opinion based upon a comparison made by him of the forged instrument with any writing proved to have been made by the defendant, whether it has been introduced in evidence or not. The 63 State v. Murphy, 17 R. I. 698, 707, 24 Atl. 473, 16 L. R. A. 550; Commonwealth v. Smith, 6 S. & R. (Pa.) 568, 570; Elliott Evidence, § 2956. Cady v. Commonwealth, 10 Gratt. (Va.) 776, 779; People v. Caryl, 12 Wend. (N. Y.) 547, 548; People v. Chadwick, 2 Park. Cr. (N. Y.) 163, 165; Dennis v. People, 1 Park. Cr. (N. Y.) 469, 473 65 People v. Davis, 21 Wend. (N. Y.) 309, 313; People v. Peabody, 25 Wend. (N. Y.) 472, 473. 70 70 Mallory v. State, 37 Tex. Cr. 482, 36 S. W. 751, 66 Am. St. 808; State v. Calkins, 73 Iowa 128, 131, 34 N. W. 777; State v. Farrington, 90 Iowa 673, 57 N. W. 606; State v. Phair, 48 Vt. 366; State v. Bibby, 91 Cal. 470. 476, 27 Pac. 781; State v. Tompkins. 71 Mo. 613, 616; State v. David, 131 Mo. 380, 33 S. W. 28. See, on this subject, Underhill on Ev., §§ 140, 141; State v. Scott, 45 Mo. 302; State v. Shinborn, 46 N. H. 497, 501, 88 Am. remoteness of the date of making the comparison from the trial, or the fact that the accused was not present when the comparison was made, does not necessarily exclude the opinion of the expert based on a comparison." This would seem the most reasonable rule, but some cases hold that the standard of comparison can be selected only from writings which are relevant, and which are actually introduced as evidence.72 The court must usually by statute first find as a matter of fact that the standard was written by the accused before it should go to the expert or to the jury. Press copies and copies made by machine cannot be used as standards.73 Any one who is familiar with a person's writing from having seen him write, though only once, or, never having seen him write, from carrying on a correspondence with him, or from opportunities afforded from frequently handling writings known to have been written by the person, is competent, Dec. 224; People v. Hutchings, 137 Mich. 527, 100 N. W. 753; State v. Webb, 18 Utah 441, 56 Pac. 159; Johnson v. State (Tex. Cr., 1907), 102 S. W. 1133; Warren v. State, 54 Tex. Cr. 443. 114 S. W. 380; State v. Skillman (N. J. Eq. 1908), 70 Atl. 83; Riley v. State (Tex. Cr., 1898), 44 S. W. 498; Rinker v. Unted States, 151 Fed. 755, 81 C. C. A. 379; Wooldridge v. State, 49 Fla. 137, 38 So. 3; Ausmus v. People (Colo., 1910), 107 Pac. 205. "Riley v. State (Tex. Cr., 1898), 493, 94 S. W. 1034; Washington v. 44 S. W. 498. People v. Parker, 67 Mich. 222, 224, 34 N. W. 720, 11 Am. St. 578; Merritt v. Campbell, 79 N. Y. 625; Hynes v. McDermott, 82 N. Y. 41, 52, 37 Am. 538; Vinton v. Peck, 14 Mich. 287, 293, 294; Van Sickle v. People, 29 Mich. 61, 64; State v. Clinton, 67 Mo. 380, 383, 385, 29 Am. 506; State v. Scott, 45 Mo. 302, 305; Manaway v. State, 44 Ala. 375; Moore v. United States, 91 U. S. 270, 274, 23 L. ed. 346; Morgan's Case, I Mood. & R. 134; People v. Schooley, 149 N. Y. 99, 43 N. E. 536; People v. Cree State, 143 Ala. 62, 39 So. 388. The condition of a person, whether drunk or sober, when he wrote the standard, is competent. People v. Parker, 67 Mich. 222, 228, 34 N. W. 720, 11 Am. St. 578. In Oregon the statute provides that comparison shall be made only with writings "admitted or treated as genuine" by the party against whom offered; this means the accused in a criminal proceedings and limits the comparison to instruments actually admitted by him to have been written by him. State v. Branton, 49 Ore. 86, 87 Pac. 535. |