Supreme Court. Broome General Term.

January, 1867.

*Mason, Balcorn*and *Boardman,*Justices.

#### Thomas Donoghoe, Plaintiff in Error *v.*The People, Defendants in Error.

A knowledge of handwriting obtained from having seen, at different times, the signatures of from eight to twelve chattel mortgages, which had been recognized as genuine by the person whose name purported to be signed to them, is sufficient to authorize a witness to express an opinion as to the fact whether an instrument shown to the witness in court, is the handwriting of the same person.

Where, on the trial of an indictment, the court charged that the fact that the prisoner had failed to introduce evidence as to his previous good character was an element in the case which the jury had a right to take into consideration in determining his guilt or innocence, it was held to be error, for which the conviction was reversed.

The prisoner, Donoghoe, was convicted at the Broome County Court of Sessions, in December, 1865, of placing *113obstructions on the railroad track .between Binghamton and Syracuse, and was sentenced to be imprisoned in the State prison for the term of two year’s. The execution of the sentence was stayed by the judge who allowed the writ of error by which the record of the trial in the case has been brought into this court.

On the trial, one Powers, a witness for the people, testified that he had known Donoghoe five or six years—that he, witness, was town clerk and had held that office three years—that when he took the office, from eight to twelve personal mortgages were on file purporting to have been given by Donoghoe.

*Question by the Counsel for the People:*Did Donoghoe come to the clerk’s office at any time in reference to any of those mortgages?

Donoghoe’s counsel objected to the evidence as irrelevant and immaterial. The court overruled the objection and admitted the evidence, to which decision .Donoghoe’s counsel excepted.

This evidence was admitted for the purpose of showing Powers was acquainted with the handwriting of Donoghoe.

Powers answered that Donoghoe came to the clerk’s office two or three different times—once or twice he and one McMahon took some of the mortgages, which were of later dates, than the old ones which were left—that Donoghoe came to take up the old mortgages just before the court, a year ago, which was after he was indicted for the crime in question. Powers was now shown, some papers by counsel for the people purporting to be chattel mortgages given by Donoghoe. He then testified, “There are four among these Donoghoe called for, I refused to let him have them; he claimed he was entitled to them; I told him I could not give them up without a written order; I told him I had no authority to give them up; I examined the signatures to the mortgages before anybody called for them; afterwards I was subpoenaed to bring them *114to court; I showed them to him I think; he requested me to give up the old mortgages as they were of no use; I became acquainted with his handwriting from examining his signatures to the mortgages.” This evidence, was objected to by Donoghoe’s counsel as irrelevant and immaterial. The objection was overruled and the decision of the court was excepted to. A paper found upon one of the ties forming a part of the obstructions upon the railroad track mentioned and referred to in the indictment, was here shown Powers, and he was asked if that was in defendant’s handwriting. Donoghoe’s counsel objected to Powers answering the question on the grounds: 1. That Powers had never seen Donoghoe write. 2. That he had not sufficient knowledge of Donoghe’s handwriting to give an opinion or testify as to his handwriting. 3. He cannot base an opinion on a. comparison of the signatures to the mortgages with the writing on the paper shown to him. The court overruled the objection, to which decision Donoghoe’s counsel excepted. Powers answered: “My opinion is that the. paper is in Donoghoe’s handwriting. There are similar letters—S, the capital D and T, and the letter O.

The following is a copy of the paper referred to:

“ Good morning, sir! A warning take by me to pay that Irishman for his grass, and tell the superintendent of to send 300 dollars, or we will fix him. There was twelve of us this morning; we were going to tare the track up; we will if you don’t settle up. So good by.”

The court charged the jury, among" other things, as follows: “ The prisoner stands charged with the crime of placing obstructions upon the track of the Syracuse, Binghamton and New York railroad. The case is one of mainly circumstantial evidence, wherein the defendant is at liberty and has the right to give evidence as to his previous character. But this he has neglected or failed to do; and the fact that the defendant has neglected or failed to intro*115duce evidence as to his previous good character is an element in the case which the jury have the right to take into consideration in determining the guilt or innocence of the prisoner.” To which portion of the charge Donoghoe’s counsel excepted, so far as it relates to the general character of Donoghoe.

Donoghoe’s counsel then requested the court to charge the jury “ that in the absense of any proof as to the defendant’s general character, the jury have no right to take that fact into consideration in determining his guilt.” The court refused so to charge, to which refusal Donoghoe’s counsel excepted.

*George*Bartlett, for plaintiff in error,

cited and commented on the following authorities on the questions respecting the evidence as to Donohoe’s handwriting: *Boyle*v. *Colman,*13 *Barb.,*42; *People*v. *Spooner,*1 *Denio,*343.

On the questions touching the charge, Mr. Bartlett cited and commented on the following authorities: *People*v. *Bodine,*1 *Denio,*282; *People*v. *White,*24 *Wend.,*520; *Ryan*v. *People,*19 *Abb.,*232; *Ackley*v. *People,*9 *Barb.,*609; *State*v. *O'Neil,*7 *Iredell,*251.

*O. W. Chapman*(District Attorney),

for tne people, cited and commented upon the following additional authorities: 1 *Greenl. Ev.,*77; *People v. Vane,*12 *Wend.,*83; *People*v. *White,*14 *Wend.,*112; 43 *Barb.,*449; 33 *N. Y. Rep.,*508; *State*v. *McAllister,*11 *Shepley's Rep.,*139.

*By the Court,*Balcom, J.

No error was committed upon questions respecting the handwriting- of the prisoner. Gkeenleaf says: “ It is agreed that if the witness has the proper knowledge of the party’s handwriting he may declare his belief in regard to the genuineness of the writing in question. He may also be interrogated as to *116the circumstances on which he founds his belief.” (1 *Greenl. Ev.,*§ 576.) Gbeenleae also says one mode of acquiring this knowledge is “from having seen letters or other documents purporting to be the handwriting of the party, and having afterwards personally communicated with him respecting them, or acted upon them as his, the party having known and acquiesced in such acts, founded upon their supposed genuineness, or by such adoption of them in the ordinary business transactions of life, as induces a reasonable presumption of their being his own writings.” (1 *Greenl. Ev.,*§ 577.) Powers acquired a knowledge of the prisoner’s handwriting by seeing his signature at different times to from eight to twelve personal mortgages, which the prisoner recognized as instruments he had‘executed. The weight due to his opinion that the paper found upon the obstruction was in the handwriting of the prisoner was for the jury to determine.

The people had not the right to prove the general character of the prisoner was bad; and neither the court nor jury had the right to infer or presume it was bad because the prisoner did not prove it was good. The people were bound to prove the prisoner guilty, whether his general character was good' or bad. The fact that a prisoner’s general character is shown to be bad, after he attempts to prove it good, creates no presumption that he is guilty of the offence with which he is charged. The people must still establish his guilt by other evidence. Prisoners may be innocent of the crimes charged upon them though their general characters be bad. It is true the force of circumstances may be weakened by proof of the prisoner’s good character. But his failure to give such proof does not add anything to the weight justly due to the circumstances. The criminal law requires the prosecutor in all cases to prove facts and circumstances from which the concluson may be justly drawn that the prisoner is guilty before he can be pronounced guiltv *117No proper fact or circumstance can be omitted because the character of the prisoner is bad. Were the rule otherwise, persons whose general characters are bad might be convicted of crimes of which they are innocent, for the reason that their characters are not good. When the prisoner does not go into the question of his character, the only inquiry for the jury is, whether the evidence establishes his guilt; and not whether his guilt would have been less probable if he had proved his general character was good. The tenderness of the criminal law is such that the bad character of the prisoner adds nothing to the force of the facts and circumstances against him, while it allows that proof of his' good character may weaken the effect of the same. It is not allowable to show, on the trial of an indictment, that the prisoner has a general disposition to commit the same kind of offense as that for which he stands indicted. Nor is it competent for the prosecutor to give evidence of facts tending to prove another distinct offense, for the purpose of raising an inference that the prisoner has committed the offense in question. (Barb. *Cr. Tr.,*353.)

The rule was laid down by the Court for the Correction of Errors, in *The People*v. *White*(24 *Wendell,*520), that it is error for the judge to call the attention of the jury to the absence of proof of the prisoner’s good character. And in *The People*v. *Bodine*(1 *Denio,*281), Beardsley, J., said, where no evidence of general character has been given, the subject of character is not one for the consideration of the jury. As to the weight that should be given to evidence of the prisoner’s good character, see *Cancemi*v. *The People*(16 *N. Y. Rep.,*501).

Welles, J.,

in delivering the opinion of the court in *Ackley*v. *The People*(9 *Barb.*609), said: “A prisoner on trial may show What his reputation is, and then the question is open to the prosecution, and for the jury to determine, like all other controverted facts. But if the prisoner *118chooses to give no evidence on the subject, the jury are are not at liberty to indulge in conjecture that his character is bad, in order to infer that he is guilty of the particular crime charged.”

The decision in *The People*v. *Vane*(12 *Wend.*78) was disregarded in *Robb*v. *Hackley*(23 *Wend.*50), and in *Dudley*v. *Bolles*(24 *id.*465). And the other cases I have cited show it is not to be followed. It is in conflict with a well-settled principle of criminal law, and it must be regarded as overruled.

The charge of the court in this case was in substance that the fact that the prisoner had neglected or failed to introduce evidence as to his previous good character was an element in the case which the jury had the right to take into consideration in determining his guilt or innocence. This was clearly erroneous, and entitles the prisoner to a new trial.

The judgment of the Broome Court of Sessions should be reversed, and a new trial of the prisoner directed in that court.

Judgment reversed, and new trial ordered.