pelled to depart from our own precedents to | tion as to prevent him from testifying. As some extent, and to establish further safeguards for the protection of the public. As the hostility of witnesses to a party may be shown as an independent fact, although it protracts the trial by introducing a new issue, so, as we think, the incompetency of a professed expert may be shown in the same way and for the same reason; that is, because it demonstrates that testimony, otherwise persuasive, cannot be relied upon. | People v. Brooks, 131 N. Y. 321, 30 N. E. 189; Schultz v. Third Avenue R. Co. 89 N. Y. 242. an interest that disqualifies may be shown, so a want of skill that disqualifies may be shown. Even in Van Wyck v. McIntosh, 14 N. Y. 439-which we do not follow in all respects-one of the judges said: "Facts bearing directly upon the credibility of witnesses are material to the issue, and witnesses may be cross-examined in regard to such facts, and may be contradicted, if they deny the truth, by other evidence. Newton v. Harris, 6 N. Y. 345. Hostile feelings on the part of the witness towards the party he is called to testify against and interest The competency of a witness under § 829 in the action or question in litigation beof the Code is not left to his own denial of long to this class." Another judge, writing interest in the event, as other witnesses may in the same case, said: "Undoubtedly a be called to prove that he has such a pe- witness who speaks to handwriting affirms cuniary interest in the subject of the ac- that he knows the handwriting of the party, not be called to prove that this second paper had | The signatures upon the blank checks were debeen actually signed by the attesting witness of signed to, and did, present a collateral issue; the first paper in their presence. This would and the rule which excludes extrinsic papers raise a collateral issue. Hughes v. Rogers and signatures is substantially the same in the (1841) 8 Mees. & W. 123, 10 L. J. Exch. N. S. direct and cross-examination, and papers not a 238. part.of the case, and not relevant as evidence to the other issues, are excluded mainly on the ground that to admit such documents would lead to an indefinite number of collateral issues, and would operate as a surprise upon the other party, who would not know what documents were to be produced, and hence could not be The reason of this rule prepared to meet them. Van Wyck v. McIntosh (1856) 14 N. Y. 439, although a case of the examination of nonexpert witnesses, has apparently been overruled by HOAG V. WRIGHT, upon the point of the contradiction of witnesses upon cross-examination raising a coilateral issue; although the later case is one of examination of an expert witness, this is here apparently a distinction without a difference, and, except for the change of the general rule as to comparison made by the statute of 1880, the same principles are held to apply. This earlier case held that witnesses could not be examined as to writings not in evidence, when the object was, in case they should testify that the handwriting was not genuine, to contradict them by other evidence, since the evidence on the point was collateral, and not material to the issue; and the fact, even if established, that the writings were genuine had no direct bearing upon the credibility of the witnesses, although facts bearing directly upon the credibility of the witnesses are material to the issue, and witnesses may be cross-examined in regard to them, and may be contradicted by other evidence. Upon this exact point, as to whether such contradiction was evidence bearing directly upon the witness's credibility, VanWyck v. McIntosh, it will be seen, is now overruled by HOAG V. WRIGHT. applies to the cross-examination with as much force as to the direct examination. Rose v. First Nat. Bank (1886) 91 Mo. 399, 60 Am. Rep. 258, 3 S. W. 876. And on the cross-examination of a witness who had testified that the signature in question was not genuine, and that the person whose handwriting it purported to be wrote a heavier hand, it was error to allow a party, for the purpose of testing the witness's judgment, to produce to him signatures of such person, and to ask him whether they were genuine; and later to contradict the witness by another as to his conclusions thereupon, and allow the signature so offered to be submitted to the jury for inspection and examination. Armstrong v. Thruston (1857) 11 Md. 148. But where, on the cross-examination of a witness to handwriting, a slip of paper having a signature written upon it three times was put in his hands with the question whether the writing was by the same person or by different persons, and he answered that they were identi In accord with VanWyck v. McIntosh, how-cal, whereupon a witness was called who testiever, are most of the cases upon this point; as Melvin v. Hodges (1874) 71 Ill. 422, supra, III. a, 1. So on the cross-examination of a witness who had sworn to a disputed hand from his own knowledge, it was not competent for a party to place before the witness the name of the person whose signature was disputed, written upon two blank checks, concealing from view the other portions of the checks, and to ask in whose handwriting the signatures were, and later to prove by another person, in contradiction of the first witness, that he had written the names on the blank checks during the progress of the trial. fied that the names were written in different hands, it was held that, although the judge might have rejected the testimony, yet its admission was not sufficient ground for a new trial. Page v. Homans (1837) 14 Me. 478. And where a witness swore that he thought the indorsement of the defendant upon the note sued upon was not genuine, and on cross-examination was asked whether tavo signatures on a paper shown him were the defendant's, and denied that they were, whereupon the plaintiff proved that the signatures were written by the defendent when indorsement in question was first disputed by him, after admitting this evi because it would introduce a collateral issue. Collateral issues are an evil, but they are permitted when justice requires it. and that the particular writing is or is not | natures which he had pronounced genuine, his. Each branch of his testimony is material, and the one as material as the other. He may be contradicted as to his knowledge, may be cross-examined as to how he ac- Where a witness, after leaving the stand, quired it, and may be contradicted in all declares that what he has testified to was a the particulars on which his pretended fabrication, such declaration may be given knowledge is founded. If he bases his in evidence, although it raises a collateral knowledge on having seen the party write, issue as to whether he made the declarait might be shown that it was some other tion. People v. Moore, 15 Wend. 420. So, person, and not the party whom he saw where the opinion of an expert is given in write; or, if his knowledge was professedly evidence, he may be contradicted by showing founded upon correspondence with the par- that at another time he expressed a different ty, this might be proved to be erroneous or opinion. Sanderson v. Nashua, 44 N. H. 492. untrue." But while it was held that the The relations which a witness has to the knowledge of the witness might be experi- case or to a party, threats made by him, the mented upon, it was also held that the wit- fact that a party tried to bribe him, the ness could not be contradicted by showing fabrication, destruction, or concealment of that he was mistaken as to simulated sig-evidence, and the like, may be shown. Nowdence for the purpose of impeaching the witness nesses who had testified entirely by comparison for the defense, it was error not to allow the as to the genuineness of the signature to a dispaper to go to the jury to sustain the plain-puted note, it was proper, in order to test the tiff's case by comparison with the disputed indorsement. Royal Canadian Bank v. Brown (1867) 27 U. C. Q. B. 41. 2. To expert witnesses. As to whether an expert witness may be crossexamined by being required to answer whether specimens of handwriting shown to him, which are not proved to be genuine, and which may be spurious, are genuine or not, there is conflict; and it cannot be determined with certainty how many of the cases above, deciding that a nonexpert witness may not be subjected to this cross-examination, also apply to the case of an expert witness. It will be seen, however, that, in accordance with the decision in HOAG V. WRIGHT, the rule in regard to experts upon cross-examination is more generally liberal than in the case of nonexperts. In an Iowa case it is held that, upon the cross-examination of expert witnesses by comparison, papers may be submitted to them having written on them the name of the person whose signature is in dispute, of which some are genuine and some written by other persons, and they may be asked to point out the genuine signatures, in order to test their knowledge, and such papers may properly be admitted in evidence. The court said, after a review of the American authorities on this point: "We think it is proper, when a witness testifies to the genuineness of a handwriting or signature, to test the value of his evidence thoroughly, and for that purpose he may be asked to give his opinion as to the genuineness of signatures which are prepared for that purpose, and in the handwriting of any person. Opinions as to the genuineness of handwriting are, at best, weak and unsatisfactory evidence, and every reasonable opportunity should be afforded on crossexamination to test the value of the opinion of the witness, and we know of no better way than was resorted to in this case." Browning v. Gosnell (1894) 91 Iowa, 448, 59 N. W. 340. And on the cross-examination of expert wit value of their evidence, to ask them to make So in an action on a life insurance policy to & Eng. Enc. Law, 2d ed. p. 503. tency of ack v. Metropolitan Street R. Co. 166 N. Y. | upon handwriting always a relevant fact, in433, 54 L. R. A. 592, 60 N. E. 32; Re Snell-asmuch as his opinion is not relevant unless ing, 136 N. Y. 515, 32 N. E. 1006; 11 Am. he is competent to express it? The compewitness is a fact necessary to be There has been a change by legislation order to learn the value of his since the Van Wyck Case was decided, so While it is not an issue raised by that writings "proved to be genuine to the the pleadings, it becomes a subordinate issatisfaction of the court," may be introduced sue by the tender of the witness as an exfor the purpose of comparison. Laws 1880, | pert. As the opinion may determine the chap. 36; Laws 1888, chap. 555. Suppose a main issue, the question whether the opinion witness should testify that a writing, not in is relevant-that is, whether it is the opinissue, was genuine, and the court should re-ion of one legally qualified to give it-is ceive it for the purpose of comparison, could necessarily an incidental issue, as otherwise it not be shown by the other party that such the main issue might be decided upon an irsignature was not in fact genuine? Such relevant fact. It is incidental to the main an issue might be collateral, but is an issue issue, because it attacks the foundation of as to the competency of a witness to ex- the evidence—and, it may be, the only evipress an opinion collateral in a vicious dence--received to establish the main issue. sense? Is not the competency of a witness It is not enough to permit the opinion of an tended to be used for comparison shall be sub- should be admitted for the purpose of affecting mitted to the other party before he announces the credibility of the expert was within the dishimself ready for trial. cretion of the presiding judge, and not a subject of exception. 307. Com. v. Pettes (1873) 114 Mass. To the contrary effect is Andrews v. Hayden (1889) 88 Ky. 455, 11 S. W. 428, decided under the Kentucky statute (§ 1659, Statutes 1899), HOA V. WRIGHT is a pioneer in holding exproviding that the party proposing to use such pressly that an expert cross-examined upon unother writings must give reasonable notice of proved or spurious writings as to their genuinehis intention to the other party. Under this ness can be contradicted as to his conclusions statute, on the cross-examination of expert wit- thereupon. By implication, however, the case nesses, the admission of spurious signatures pre- will find support in the decisions noticed above pared by an expert and mingled with the gen- in Georgia, Michigan, and Iowa, allowing this uine signatures of the person whose signature cross-examination of an expert witness, without was in dispute, and the requirement of the wit-regard to the contradiction thereafter, which ness to select from them the genuine, were held would be a logical sequence, unless, according to be manifestly wrong; such writing should to a familiar rule, the cross-examining party have been excluded because tending to obstruct were bound by the answers received upon the the proper administration of the law, and decross-examination as to collateral matter. ceiving, by the skill in their execution, the minds of honest men; it was neither a just nor a legal test, and threw no light on the question presented. In Connecticut, also, a spurious signature, or a writing made by another person than the one whose handwriting is in question, may not be used on the cross-examination of an expert. Tyler v. Todd (1869) 36 Conn. 218. And experts who have testified as to their opinion of disputed handwriting from comparison with proved standards cannot be questioned, on cross-examination, as to the authorship of other writings not pertinent to the case, for the purpose, simply, of discrediting their knowledge as experts. State v. Griswold (1896) 67 Conn, 290, 33 L. R. A. 227, 34 Atl. 1046. To the same class of cases may, probably, also be added Massey v. Farmers' Nat. Bank (1882) 104 Ill. 327, and Rose v. First Nat. Bank (1886) 91 Mo. 399, 60 Am. Rep. 258, 3 S. W. 876, supra, III. b, 1. When an expert had testified from comparison that certain material letters were in the handwriting of the defendant, and was shown on Cross-examination two letters not material in the case and asked if they were not in the same handwriting as the admitted writings of the defendant, and declined to answer without examination; and the defendant then offered to introduce in evidence the last two letters as they had been shown to the expert for the purpose of testing his knowledge of handwriting, it was held upon appeal that the extent to which they In People v. Murphy (1892) 135 N. Y. 450, 32 N. E. 138, Overruled in HOAG V. WRIGHT, the prosecution in a criminal trial introduced certain anonymous letters, which were proved, by comparison with genuine specimens of the defendant's handwriting, to have been, in the opinion of the expert witnesses, written by him; and the defendant, in order to test the experts' judgment. showed them other specimens of handwriting which the experts, after similar comparison, testified were partly written by the same person who wrote the letters, but differed in their answers; and it was held that the defendant could not then prove that the specimens submitted by him were not written by the defendant, but by another person; he "could not be permitted to go farther and litigate the immaterial issue of the authenticity of the additional specimens submitted by him for such purIt would give rise to a multiplicity of pose." collateral issues which might render the litigation interminable; for the prosecution would have the right to disprove, if they could, the testimony offered, and by a comparison of the handwriting show that these specimens were not written by that other person. This decision, although now overruled, has been followed in the only other case decided upon the precise point. Expert witnesses by comparison were shown upon cross-examination, a number of papers t which the name of the alleged maker of the note in suit was attached, when no evidence had beer. incompetent witness to be met by the opin- | tually possesses, and of the accuracy of such · ion of a witness who is competent, for the knowledge the jury must judge." Rogers, jury may not be able, even when instructed Expert Testimony, 59. by the cross-examination, to tell the good from the bad, unless they are guided by further evidence. It is for the trial judge to decide whether the witness, by his own evidence, has qualified himself to express an opinion, but it is for the jury to decide upon all the evidence, and under proper instructions from the court, whether he is in fact competent as an expert. If they find him incompetent, they should be told to disre-nounced is inconsistent with the views there We think that any testimony of an alleged expert upon handwriting, which bears on his competency to express an opinion, may, within reasonable limits, be contradicted by the testimony of other witresses. We deem it our duty to limit such cases as People v. Murphy, 135 N. Y. 450, 32 N. E. 138, and Van Wyck v. McIntosh, 14 N. Y. 439, in so far as the conclusion thus an in expressed. The judgment should be reversed, and a new trial granted, with costs to abide event. gard his opinion; but they cannot, in many cases, safely pass upon the question if they are limited to the evidence of the witness himself and to his own description and estimate of his qualifications. "The value of an opinion does not depend upon the skill Martin, Vann, Cullen, and Werner, and knowledge professed by the expert, but│JJ., concur. upon the skill and knowledge which he ac Parker, Ch. J., and Bartlett, Haight, do not express any opinion as to genuineness of the writing in dispute (II. b, 2.). given concerning the genuineness of the signa- | characteristics in the writings, although they tures upon the papers which were not in evidence in the case, and the witnesses were asked to give their judgment as to the genuineness of such signatures from a comparison with those already in evidence and admitted by both parties to be genuine; and afterwards the crossexamining party put on the stand a witness who proved that certain of the signatures so used on cross-examination were written by himself. This method of cross-examination was held to be error, following Rose v. First Nat. Bank, 91 Mo. 399, 60 Am. Rep. 258, 3 S. W. 876; Massey v. Farmers' Nat. Bank, 104 Ill. 327; and Tyler v. Todd, 36 Conn. 218,-supra. Gaunt v. Harkness (1894) 53 Kan. 405, 36 Pac. 739. IV. Summary. Almost the same amount of conflict of authority and divergence of view, as to the minor question of the examination of witnesses to handwriting by comparison as in the vexed question the comparison of handwriting generally, is here to be seen. But on some points there is practical unanimity. To a nonexpert witness the party calling him cannot submit papers on the trial which he has not seen written, for the purpose of supplying to the witness the mental exemplar, which has been found to be lacking, of the handwriting in dispute (II. a, 1). But a witness can always be shown a writing which he has seen the person write whose writing is in question, for the purpose of refreshing his recollection of it, when that proves insufficient at the trial to allow the witness to swear to the genuineness of the writing in question (II. a, 2). Expert witnesses may illustrate their opinions resulting from comparison upon a blackboard, and may be asked generally what Indications they have found tending toward the conclusions which they have reached, even although the points of the handwriting described may be such as the jury could observe unaided (II. b, 1). And, as a corollary, it is necessary, in order that their opinions may have weight, that the experts should go into the details of their examination. But generally, where comparison by witness is not allowed, experts may not be called to point out to the jury differences and As to the cross-examination of ordinary witnesses to handwriting, it is not improper to allow such a witness, who denies the genuineness of the disputed writing, to be asked to state any differences which he may observe between a proved specimen of handwriting in evidence and the disputed one. It has been held, however, that this examination is improper in the case of one not an expert (III. a, 1). And where there is no question as to the genuineness of a writing in evidence or in the case, it may be submitted to a nonexpert witness for his opinion as to genuineness. Also, a witness whose handwriting is in question may be required upon cross-examination to write before the jury, so that an undisputed standard may be had. (Ibid.). The cross-examination of experts, generally, seems to be a matter largely in the discretion of the court, as to how and when they should be required to compare and point out differences apparent to them; but experiments of the expert which would tend to throw light upon the subject ought to be permitted (III. a, 2). The submission to nonexpert witnesses, upon cross-examination, of unproved specimens of handwriting which are not known to be either genuine or spurious, for the purpose of obtaining from them an opinion as to their genuineness, is not permitted, unless in jurisdictions where by statute comparison by "witnesses" is allowed (III. b, 1.). And so, a fortiori, where the object of the cross-examination is to give an opportunity to contradict the witness later, the rule is the same (Ibid). In the case of this method of cross-examination of experts, however, the cases are conflicting, and the weight of authority allows the submission to experts, on cross-examination, of unknown and spurious writings for the purpose of testing their accuracy (III. b, 2). Upon the point involved in HOAG V. WRIGHT, as to whether the opinions so obtained from experts upon cross-examination may be contradicted, there is no direct authority, except one to the contrary effect; so that the point may be considered still unsettled, except in the jurisdictions in which the decisions L. B. B. were made (Ibid). VERMONT SUPREME COURT.` STATE of Vermont v. Albert SHEDROI. (........ Vt....... ) The exemption of honorably discharged soldiers of the Rebellion, citizens of the state, from the provisions of a statute requiring peddlers to pay a license tax, is a denial of the equal protection of the laws, within the prohibition of U. S. Const. Amend. 14. (May 16, 1903.) EXCEPTIONS by defendant to rulings of the Caledonia County Court overruling a demurrer to an information charging defendant with becoming a peddler without a license. Reversed. The facts are stated in the opinion. son was unconstitutional. Later the law was so amended as to avoid such discrimination. Laws 1900, p. 66, No. 94. Vt. Stat. 4732, provides that a person who becomes a peddler without a license in force as provided in that chapter (198) shall be fined not more than $300, and not less than $50. By Vt. Stat. 4733, persons resident of this state, who served as soldiers in the war for the suppression of the Rebellion in the Southern States, and were honorably discharged, are exempt from the payment of a license tax under the provisions of that chapter. It is urged that herein the law unjustly discrim inates in favor of such soldiers, and against other persons, by reason of which it is in violation of the 14th Amendment, whereby no state can "deny to any person within its jurisdiction the equal protection of the laws." Can such an exemption be made by the legislature without affecting the validity of the general provisions of that chapter? is the question. In Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 33 L. ed. 892, 10 Sup. Ct. Rep. 533, speaking through Mr. Justice Bradley, the court said: "The provision of the 14th Amendment that no state shall deny The statute is also bad in that it is in vio- to any person within its jurisdiction the lation of the 1st clause of the 14th Amend-equal protection of the laws was not intended ment of the Federal Constitution, as well as articles 1, 4, and 7 of the Vermont Constitution. Re Parrott, 6 Sawy. 349, 1 Fed. 481; Yick Wo v. Hopkins, 118 U. S. 356, 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; State v. Hoyt, 71 Vt. 59, 42 Atl. 973; State v. Cadigan, 73 Vt. 245, 57 L. R. A. 666, 50 Atl. 1079. Butchers' Union S. H. & L. S. L. Co. v. Crescent City L. S. L. & S. H. Co. 111 U. S. 746, 28 L. ed. 585, 4 Sup. Ct. Rep. 652. Mr. M. G. Morse for the State. Watson, J., delivered the opinion of the court: The respondent is informed against for becoming a peddler without a license in force, under the provisions of Vt. Stat. chap. 198, as amended by No. 94, p. 66, Laws 1900, and the case is here upon demurrer to the information. It is contended that the law upon which this information is based is in conflict with the 14th Amendment to the Constitution of the United States. It may impose to prevent a state from adjusting its system That the license fee required to be paid under the provisions of this chapter for the privilege of selling goods as a peddler is a tax upon the goods themselves was determined by this court in State v. Hoyt, 71 Vt. 59, 42 Atl. 973. In that case the law was held to discriminate unjustly against goods manufactured in this state, and for that rea-ble and unwise to attempt to lay down any NOTE. For a case in this series similar to the one above, as to exemption of honorably discharged soldiers from payment of license tax imposed on peddiers, see State v. Garbroski, 56 L. R. A. 570. general rule or definition on the subject that would include all cases. They must be decided as they arise. We think that we are safe in saying that the 14th Amendment was |