Evening star., 1935-10-10

IdCLONy1 NCly iASokASASoANSs AASNSS eAA7
reliable and of the lowest probativt
force (Moore on Facts, Sec. 49,.
Jury Need Not
Believe In Expert.
"3. A jury is not bound to accept
the opinion Of an expert as to dis.
puted handwriting, even when un.
contradicted. It should consider 1t q
an argument rather than as proof
and make allowances for all the dis.
turbing influences by which the judg.
ment Of the expert may be moved q
What. on Ev. Sec. 72z)."
These are copied verbatim in order
to make it plain that Nos. 2 and I
are extracted from legal text book,
and No. from an opinion by the late
Vice Chancellor Van Fleet in 1878.
The refusal of No. 2 is clearly sup.
portable on the ground that 1t does
not pretend to be direct proposition
of law, but merely a quotation from
a text writer. No. 8, we think, was
adequately covered, If correct, by ths
broad instruction leaving the weight
of evidence on handwriting to the
jury. Request No. Is taken, as W.
have said, from the case Of Mutua,
Benefit Life Insurance Co. VS.. Brown
80 N. j. Eq, 20l. As to this, 1t should
be noted in the first place that ths
case came to this court (32 Id. 5000
which did not adopt the language o!
the vice chancellor, no further thar
to say (P. 8l2): THE opinions Of ex.
perts, however skillful they may be
are weaker in degree Of certainty thar
the direct evidence of the subscribing
witness, who has sworn to the genu-
ineness of both signatures, when hi
proved the execution.
There Is nothing in the evidence
to show that he had any interest or
motive to swear falsely, or to impugn
his veracity."
This is very far from saying that
the expert evidence is, generally and
without qualification, proof of low
degree" In this case the trial judge
pointed out, numerous experts in hand
writing had testified that the defend
ant wrote every one Of the ransom
notes, and only one for the defendant
denied this.
Handwriting Evidence
Upheld for Years.
The history of the legitimizing Of
this class of evidence, i. e., COMPARE
son Of handwriting, is most interest
ing, but cannot be considered in ex-
tense here. See Wigm. Ev., section
1891 ct seq. But it may well be noted
that its legal status was at least very
doubtful until it was authorized by
statute in England in 1854 and in this
State for the first time apparently In
the revision of 1874. See Rev 1877,
p. 38l. Sec. 10, C. S. 1926, sec. 20.
In Gordon's case, so N. j., Eq.. 397,
Chancellor McGill, sitting as ordinary,
said at page 422:
Handwriting is an art concerning
which correctness of opinion is suscep-
tlble of demonstration, and I am fully
convinced that the value of the opin-
ion of every handwriting expert as
evidence must depend upon the clear
ness with which the expert demon
strateS its correctness. (P. 423.) With
out such demonstration the opinion
Of an expert in handwriting is a low
order of testimony" etc.
Neither Statement
Binding on Court.
Neither of the two statements Is
binding on this court. There was nc
request to charge the latter, and as
to the former, which was requested
we are at least clear that without the
qualifying clause of demonstration the
defendant was not entitled to have ii
charged. There was in fact ample
demonstration by the experts for the
State, and plainly 1t was satisfactory
to the jury, to whose decision the
Judge properly left 1t. % G. j. 1913
Com. VS.. Williams, los Mass. go. SO.
We find no error in the refusal OF
the first request.
Point XII also brings up refusal to
charge, and is in several subdivisions
The first deals with the charge OF
reasonable doubt. 1t was fully and
correctly charged. The present COM
plant is that the court did not add a
sentence contained in the opinion OF
the Supreme Court in State VS.. Had
ley, lib N. j. Law, 335, 337.
The trial court in that case had
charged that "if the State has failed
to prove It's charges, and the. defend
ants have caused you to entertain and
believe that such a doubt actually ex-
lists" etc.
The Supreme Court naturally and
properly said: THE duty was upon
the State to prove the defendants
guilty beyond reasonable doubt, and
no duty was cast upon the defendants
to cause the jury to entertain q doubt
as to their guilt" but that was ap-
plicable and applied to that particular
situation, and the court was very far
from holding that any proper charge
on reasonable doubt must include the
latter phrase. The accredited formula
was used in this case, and no such ad-
dition was called for.
Questions on Venue
Settled by Court.
AS to venue, there were six requests
said to have been refused:
No. /. No evidence that the murder
was committed in Hunterdon. This
is not supported by the record.
No. g. Presumption of death in Mer-
Ger. This was charged.
No. 3. That the presumption was
not rebutted. That question was for
the jury.
No. 4. No evidence of a felonious
striking in Hunterdon. There was
such evidence.
No. 6. No evidence of completed
murder in Hunterdon. This was not
required, in view of section 50 Of the
criminal procedure act. Supra.
No. 10. If death occurred In Mercer
and it ensued from commission of
burglary in Hunterdon, acquit. This
was properly refused, as death in
Mercer could have ensued from the
felonious striking in Hunterdom
N. 8. "No evidence that defendant
committed or attempted to commit
k..