#### The State of Iowa, Appellee, v. Philip Farrington, Appellant.

Continuance: absence of witnesses: sufficiency of showing. An application for a continuance on the ground of the absence of witnesses, which fails to show proper diligence on the part of the applicant to obtain the testimony of such witnesses or their presence in court, nor shows reasonable grounds for believing that the attendance or testimony of the witnesses will be procured at the next term of. court, should be overruled. (1)

Forgery: evidence: cross-examination. Where, upon the trial of an indictment for the forgery of an indorsement upon a draft, made to the order of P., the cashier of the bank, which sold the draft to P., having testified, on behalf of the state, to the facts attending the purchase, *held,*that the defendant was not entitled to show, on Cross-examination of the witness, that about a week or ten days after the purchase P. ordered payment on said draft stopped. (2)

Same: proof of handwriting: competency of witness. One who has known another for twenty years, is acquainted with his handwriting, and has seen him write, is competent to testify whether a given writing is in his handwriting. (3)

Same: standard for comparison. The signature of one in a hotel register, made about the time of the writing in controversy, and shown to be genuine, may be used as a standard for comparison, in proof of handwriting. (4)

*674Same. The signature to a motion for a continuance in a prosecution for forgery, purporting to he that of the defendant, and to which is attached the certificate of the clerk of the court, that the same was subscribed by the defendant in his presence, *held,*to be competent as a standard for comparison in proof of the handwriting of the defendant in such case, without proof that the signature was genuine. (5)

Same: evidence foe prosecution not peodijced before grand juey. The introduction of such a writing as a standard for comparison of handwriting is not erroneous under the provisions of section 4421 of the Code, prohibiting the state from introducing any witness who was not examined before the grand Jury, except upon certain eon- ■ ditions. (6)

*Appeal from Jones District Court.*— Hon. James D. Gteeen, Judge.

Wednesday, January 24, 1894.

The defendant was indicted, convicted, and. sentenced for the crime of forgery, and *appeals.*

Affirmed.

*J. W. Jamison*and *W. P. Wolf*for appellant.

*John T. Stone,*Attorney G-eneral, *Thos. A. Cheshire,*and *F. 0. Ellison,*County Attorney, for the state.

Kinne, J.

The charging part of the indictment in this case is:

> “Philip Farrington, at and within said county, and before the finding of this indictment, to wit, on the twenty-fourth day of February, did have in his custody and possession a certain bill of exchange or draft, which said bill of exchange was and is as follows, that is to say:

> ‘$780.00. First National Bank, No. 64,813.

> ‘Tipton, Iowa, 1-10-1890.

> ‘Pay to the order - of Philip Pfarr ($780.00) seven hundred eighty dollars. To Hide and Leather National Bank, Chicago, Ill.

> ‘C. W. Hawdey, Cashier.’

*675And on the back of said bill of exchange was then and there written a certain forged indorsement of the said bill of exchange, which said forged indorsement is as follows, that is to say: ‘Philip Pfarr;’ he, the said Philip Farrington, well knowing the said indorsement to be forged, on the day and year last aforesaid, in the county aforesaid, willfully and feloniously did utter and dispose of, and publish as true, the said indorsement of the said bill of exchange, so indorsed, with intent then and there to defraud one E. E. Snyder, contrary to and in violation of law.”

To this indictment, defendant pleaded not guilty.

I. It is contended that the court erred in overruling the defendant’s motion for a continuance. This motion was based upon the absence of one Bardwell, a resident of Colorado; one Eaton, a resident of "Wilton Junction, Iowa, and Louisa Kalb, a resident of Crawford county, Iowa. As to the witness Bardwell, it is shown that the defendant knew he was a resident of the state of Colorado; that prior to March 1, 1891, Bard-well had informed the defendant that he would be in Tipton about the latter date, and would remain there until April, 1891; that the defendant had intended to take his deposition, but, on learning that he was coming to Tipton, did not do so. A subpoena was issued for this witness, but when, it does not appear. Eaton is also said to be a material witness for the defendant. It seems a subpoena was issued for him, but the record before us fails to show when it was done. Louisa Kalb lives beyond the reach of a subpoena. She had been in Cedar county for three months, and, it is averred, expected to remain until after the March term of the Jones district court for 1891, but was called home, and, though expecting to return, has not done so.

Even if it be conceded that the proposed testimony of these three witnesses is material and competent, still the court did not err in its ruling:. This record discloses *676the fact that this case had been tried once before; that the defendant was arrested about a year prior to the last trial. It must be presumed, then, in the absence of a showing to' the contrary, that the defendant was fully conversant with the witnesses he would need on the trial for a sufficient length of time to have taken their depositions, or, if within the reach of a subpoena, to have had it served in due time. There is no sufficient excuse offered for failing to take the deposition of any of these parties. There is no diligence shown in attempting to secure these witnesses, or their depositions. No effort was ever made to take Eaton’s deposition, nor does it appear when the subpoena was issued for him. Louisa Kalb, in fact, stayed in Cedar county until a week before this application ■ was filed, and. then went home, to Crawford county. It does not appear when the subpoena was issued for her. The facts show negligence on part of the defendant in not securing this evidence. Again, the application does not conform to the requirements of the statute, in this: that it fails to state facts and show reasonable grounds for believing that the attendance or testimony of the witnesses will be procured at the next term of court, and this the statute requires. Code, section 2750. The motion was properly overruled.

II. Hawley, the cashier of the bank that sold the draft to Jacob Pfarr, the indorsement of which it is claimed was forged, was asked as to the facts surrounding the purchase. On cross-examination the defendant attempted to show by the witness that, a week or ten days after the purchase of the draft, Jacob Pfarr went to the bank and ordered payment on said draft stopped. This was clearly not cross-examination. The witness had not been interrogated on his examination in chief as to the matters sought to be shown on cross-examination. The ruling of the court was therefore correct.

*677III. N. B. Anthony, a witness for the state, testified that he had lived in Stanwood twenty-one years, and was in the mercantile business; that he had known the defendant for twenty years; was somewhat acquainted with his handwriting, having seen him write.He was then asked to look at the signature in controversy, and state whether or not, in his opinion, it was in the defendant’s handwriting. The defendant’s counsel objected to the question as calling for incompetent testimony. The objection was overruled, and the witness answered, “It looks some like his.” The defendant moved to strike the answer because it disclosed that the witness was incompetent to testify upon the subject inquired about, and because the evidence was incompetent. This motion was overruled. The examination then proceeded as follows: *“Q.*Mr. Anthony, what is your best judgment as to whether that is his handwriting?” Same objection,'and overruled. *“A.*Of course I wouldn’t swear that that is his handwriting unless I saw him put it there. *Q.*No, of course, but what is your best judgment as to its being his handwriting!” To this the same objection was made, and same ruling had. *“A.*Well, sir, I should think it very similar to his handwriting. *Q.*But you will have to answer the question, Mr.; Anthony.” The defendant’s counsel moved the court to strike out all the answers of the witness, as being incompetent. The motion was overruled. “Mr. Anthony, I want you to state what is your best judgment as to whether or not that is his handwriting. It is not a question of similarity. *A.*Well, I should say that it is in his handwriting. It is very similar to his handwriting. But, as to saying that it is positively in his handwriting, I couldn’t say that without seeing him write it.” Here the motion to strike the answers was renewed and overruled. To all these rulings the defendant at the time excepted.

*678Having in view the entire examination of this witness, we do not think the court erred in its rulings. The rulings are assailed upon two grounds: *First,*because the witness was not shown to be an expert, and qualified to testify; and, second, that the testimony in fact given was incompetent. There can be no question as to his being a competent witness. He had shown that he had been acquainted with the defendant for twenty years; that he was acquainted with his handwriting, and had seen him write. In *Hyde v. Woolfolk,*1 Iowa, 167, it is held that in such cases the competency of a witness as an expert does not depend upon his having followed a particular calling, but rather “on his means of knowledge as a business man, and his intelligence.” Every fact necessary to be established in the first instance to show his competency had been shown. It is now almost the universal rule that one who has seen a party write is competent to give an opinion as to the genuineness of his signature, in a proper case. 1 G-reenleaf on Evidence, section 577; *Egan v. Murray,*80 Iowa, 182; *Succession of Morvant,*45 La. Ann. 207, 12 South. 349; *State v. Zimmerman,*27 Pac. (Kan.) 999; *De La Motte’s Case,*21 How. St. Tr. 810; *Miles v. Loomis,*75 N. Y. 288; *Bell v. Brewster,*44 Ohio St. 690, 10 N. E. Rep. 679; *State v. Gay,*94 N. C. 814; *State v. Stair,*87 Mo. 268; *Long v. Little,*119 Ill. 600, 8 N. E. Rep. 194; *Hopper v. Ashley,*15 Ala. 457; *Moon v. Crowder,*72 Ala. 79; *Woodman v. Dana,*52 Me. 9; *Bank v. Armstrong,*66 Md. 113, 6 Atl. Rep. 584; Eogers on Expert Testimony [2 Ed.], sec. 122. All the answers of the witness set out, except the last, were not responsive to the questions asked; and if it should be conceded that they were incompetent — a question we do not find it necessary to decide — and that the court erred in not striking them out, still the error was without prejudice to the defendant. The last’ answer was both responsive and competent, and it *679embraced all and more than was in tbe prior answers. In no event could tbe defendant have been prejudiced by tbe court’s rulings.

IY. ■ Elliott testified, as a witness for tbe state, that be was acquainted with tbe defendant; that be kept a hotel at Stan wood, Iowa; and that, at various times near tbe time of tbe commission of tbe alleged forgery, tbe defendant bad stopped at bis hotel, and be bad seen him write bis name in tbe hotel register. Tbe purpose of tbe testimony was to identify as genuine tbe signatures of tbe defendant on this hotel register preliminary to its introduction in evidence. Tbe defendant moved to strike tbe evidence as incompetent, immaterial, and irrelevant. Tbe motion was overruled, and an exception taken. Counsel’s claim is that tbe hotel register could not be used as a standard of comparison, because it was not relevant or material to any other issue in the case. Whatever may be tbe rule elsewhere, this court has recognized- tbe right to use, for tbe purposes of comparison, tbe defendant’s genuine signature, wherever found, if made about tbe time of tbe alleged forgery. Hyde *v. Woolf oik,*1 Iowa, 164; *State v. Calkins,*73 Iowa, 128. See *Sankey v. Cook,*82 Iowa, 125. In tbe *Calkins case,*tbe writing sought to be proven as a standard was, as in tbe case at bar, a signature of tbe defendant in a hotel register, which was proven to be bis signature by one who saw him write it, and it was held proper. What we have said in this division of tbe opinion applies also to tbe defendant’s exceptions to the admission of tbe testimony of Mershon, identifying a check presented to Mershon, with tbe defendant’s name indorsed thereon,

Y. It appears that on March 13, 1891, and preceding tbe commencement of tbe trial below, tbe defendant filed a motion for a continuance. It purported to be signed by him, and below his signature was tbe following: “Subscribed in my presence, and *680sworn to before me, by Philip Farrington, this thirteenth day of March, 1891. R. M. Bush, Clerk.” Witness Hawley, being recalled, and shown to be competent to testify as an expert, said he had never had any correspondence with the defendant, and had never seen him write. The state then offered in evidence the signature of the defendant to his showing for a continuance. It was objected to as incompetent as a standard of comparison, as there was no evidence that the signature offered was written by the defendant, and, further, because no notice had been given the defendant that such a paper would be offered in support of the indictment, and the same was not before the grand jury. The objections were overruled, and the signature admitted as genuine, and was thereafter used by the state as one of the standard writings for the purpose of comparison, all against the defendant’s objection. Our statute provides that “evidence respecting handwriting may be given by comparison made by experts, or by the jury, with writings of the same person which are proved to be genuine.” Code, section 3655. It was held in *Hyde v. Woolfolk,*1 Iowa, 162, that there were two methods of proving the standard writing: *First,*by the testimony of a witness who saw the party write; and, *second,*by the party’s own admission, when not offered by himself. It was also said that there might be other ways of proving the genuineness of the standard writing. The statute is absolute in its requirement that the genuineness of the standard writing must be established, but makes no provision as to how it shall be done. Here the defendant, for a legitimate purpose,- attaches his signature to a paper which he finds necessary or desirable to file in the case. It is filed, and becomes a part of the record in the case. The defendant’s name purports to be signed to the paper. The clerk certifies officially that that signature was put there by the defendant, before him, and in his *681presence. On the faith of such a showing, and the genuineness of the defendant’s signature thereto, and in reliance thereon, the court is asked to grant him a continuance. He has thereby most solemnly said to the court, in the very case on trial, that his signature to that paper is genuine. The case is not like *Hyde v. Woolfolk, supra,*for in that case the acknowledgment did not show that the signature was his own, while in the case at bar his signature was made in the presence of the officer, and it was adopted as the defendant’s by him in attempting to secure a continuance on the strength of the showing made, and which was necessarily signed by him. Surely, where one signs his name to a paper, which he voluntarily makes a part of the record in the case, and upon which he invokes the ■action of the court, he must be held, in that case, at least, to be estopped from thereafter questioning the genuineness of his signature to such paper. .As supporting this doctrine, see *Moore v. United States,*91 U. S. 270; *Wilber v. Eicholtz,*5 Col. 240; *Vinton v. Peck,*14 Mich. 287.

VI. Our statute provides, in substance, that in support of the indictment the state can not introduce any witness who was not examined before the grand jury, and the minutes of whose testimony were not taken by the clerk of the grand jury, and presented with the indictment to the court, unless the county attorney shall have given the defendant four day’s notice, in writing, before the commencement of the trial. And if the county attorney desires to introduce such evidence, and has not given the notice for want of time since he learned that the evidence could be obtained, he may move the court for leave to introduce it; and, if the court sustains the motion, the defendant must elect whether the cause shall be continued on his motion, or the trial proceed, and the evidence be introduced. Code, section 4421. This evidence was not *682before the grand jury, no notice was given the defendant that it would be produced in support of the indictment, and no motion was made by the county attorney, as the statute provides. The provision of the statute is, as we have seen, that no witness can be examined in support of the indictment by the state, unless he was examined before the grand jury, or unless notice is given. Now is the offered signature a witness within the language and intent of the statute? We think not. The word “witness,” as used in the statute, evidently refers to a person, not to an inanimate object or thing. See Bouvier’s Law Diet., tit. “Witness;” Webster’s Diet., tit. “Witness.” We are not warranted in extending the provision of the statute so as to cover a kind of evidence not mentioned therein. We discover no error in admitting the signature in evidence.

VII. It is said that the verdict is not sustained by the evidence. We do not feel called upon to discuss the evidence in detail. We think it fully justified the jury in finding defendant guilty. His explanation of the means by which he came into possession of the draft was exceedingly unsatisfactory and wholly improbable. His conduct and conversation after he knew that the draft was claimed to be the property of another was not that of an innocent man. We have no doubt, from the record before us, of the defendant’s guilt.

After a patient examination of the entire record, and the consideration of all errors assigned, we discover no reason for disturbing the verdict. Affirmed.