folk, 1 Iowa, 160; Shannon v. Fox, 1 Cranch, 48 Fed. 780; Ladd v. Smith (Ala.) 10 So. C. C. 133, Fed. Cas. No. 12,706; Springer v. 836; Amos v. Stockert, 47 W. Va. 110, 34 Hall, 83 Mo. 693, 53 Am. Rep. 598; Tome S. E. 821. v. Parkersburg Branch R. Co. 39 Md. 36, 17 Am. Rep. 540. The witness did not qualify as an expert. Ort v. Fowler, 31 Kan. 478, 47 Am. Rep. 501, 2 Pac. 580; State v. Tompkins, 71 Mo. 616; 15 Am. & Eng. Ene. Law, 2d ed. p. 278; Travis v. Brown, 43 Pa. 9, 82 Am. Dec. 544. Even if it was error to admit pleas, the error is harmless when no evidence was introduced under either of them. 2 Enc. Pl. & Pr. 547; Rinehart v. Niles, 3 Ind. App. 553, 30 N. E. 1; Ogden v. Kelsey, 4 Ind. App. 299, 30 N. E. 922; Peeler v. Lathrop, 1 C. C. A. 93, 2 U. S. App. 40, Brannon, J., delivered the opinion of the court: This was an action of debt, tried before a special judge, on a negotiable note, in the circuit court of Mineral county, brought by M. C. Totten against Sandford Whip, resulting in a verdict and judgment for the defendant, from which he has sued out a writ of error. The defendant pleaded nil debet, and filed a plea (No. 3) saying that "he did not make or sign the note sued on," which was verified by affidavit. The defendant also filed two special pleas (Nos. 2 and 4), to the ef An examination of a witness to handwriting, | claim to be an expert, and had only the orwhose duty it was to pass and act upon the sig-dinary knowledge of a person in his business, nature of the person whose handwriting was in dispute, as to how often he had to perform this duty, was material to show the means and extent of the knowledge of the witness upon which his opinion as an expert was based. Bank of Commonwealth v. Mudgett (1871) 44 N. Y. 514. There is no distinction as to competence to be made between expert witnesses who have seen the person write whose signature is in dispute, and those who have not. Hadcock v. O'Rourke (1889) 25 N. Y. S. R. 55, 6 N. Y. Supp. 549. To the same effect is Durnell v. Sowden (1887) 5 Utah, 216, 14 Pac. 334. III. Necessity of professional knowledge. On an indictment for obtaining money by false pretenses, where the solicitor for the prosecution was called as an expert for comparison of the handwriting in dispute with the admitted handwriting of the defendant, and it was objected that the solicitor was not an expert, since he had never before given eyidence as to handwriting, and had obtained his knowledge of handwriting apart from his professional work, it was said by Lord Russell that the witness who is called upon to give evidence founded upon a comparison of handwritings must be peritus, but it could not be said that he must have become peritus in the way of his business, or in any definite way. The question is, Is he skilled? And if he is not skilled the judge will tell the jury to disregard his evidence. Queen v. Silverlock [1894] 2 Q. B. 766, 63 L. J. Mag. Cas. N. S. 233, 10 Reports, 431, 72 L. T. N. S. 298, 43 Week. Rep. 14, 18 Cox C. C. 104, 58 J. P. 788. A witness called for the purpose of comparison of handwriting, who testified that he was not an expert in the business of comparing handwriting; that he had never made it a business to compare or detect forged writings; that he had been a clerk in a store, editor of a newspaper, and a lawyer; that he believed that he had some skill in comparing handwritings; that he had during his life had occasion to examine a good deal of writing, but did not pretend to any more skill than business men, but thought he was as good a judge as business men generally; and another witness who testified that he was a merchant, but had had occasion to examine bank paper to detect counterfeits, possessed some knowledge of handwriting, but did not and of his age, and that he was in the habit of examining and handling bank bills,-were permitted to testify as experts; and it was held that the ruling was not error that a witness of a particular calling was not required as an expert, but that his admissibility depended on his means of knowledge as a business man, and his intelligence; and the fact that a witness did not claim to be an expert, nor to be superior to others in judgment, was not to be considered. The court said: "It is true that persons giving evidence on a matter pertaining to their par ticular science, trade, or art come more strictly and technically under the term 'experts,' but we cannot consent to the proposition that no others come within it, and are allowed to be witnesses, in any case. It may very probably be true that none are to be taken as experts on matters pertaining to a particular calling, art, or science, but those who are or have been practised in such art or science. But there are many subjects of inquiry which do not belong to a particular art, etc., but on which a greater or less degree of knowledge is common to many men in different callings." Hyde v. Woolfolk (1855) 1 Iowa, 159. A witness who shows that he has been for a length of time engaged in a business which necessitates the comparison of signatures, and that he has in fact been in the habit of making such comparisons, is qualified as an expert for comparison of handwritings; it is not necessary, to make a man an expert and qualified to testify as to comparison of handwritings, that he should have made such comparisons a single specialty; it is enough that he has been engaged in some business which calls for frequent comparisons, and that he has in fact been in the habit for a length of time of making such comparisons. Ort v. Fowler (1884) 31 Kan. 478, 47 Am. Rep. 501, 2 Pac. 580. In South Carolina comparison by witnesses who are not professed experts, one of them being merely a bookkeeper in a bank, and the other a notary public, is competent, the value of the comparison depending in each case upon the intelligence, skill, and experience of the witness in such matters. Benedict v. Flanigan (1882) 18 S. C. 506, 44 Am. Rep. 583. When handwriting is the subject of controversy in judicial proceedings, witnesses who, by study, occupation, and habit have become fect that a person unknown to Whip, pretending to be a dealer in land and a purchaser of farms, came to Whip's house, and falsely represented that he wished to buy Whip's farm, and, with intent to defraud, so ingratiated himself into the confidence of Whip that he agreed to sell his farm, and to close the bargain in two weeks; that said unknown person suggested that, in case he should not be able to meet Whip within that time, it would be necessary that he should have Whip's post office address, and requested him to make a memorandum of it, and presented to Whip what he supposed to be a common note or memorandum book, and on the faith that what he was about to write was only such post office address, and without intention to make any such note as skilful in marking and distinguishing the characteristics of handwriting, are allowed to compare that in question with other writings which are admitted or proved to be written by the person whose signature is in dispute, and to give opinions formed from such comparisons; and they are not the less experts because they do not profess to know the precise meaning of the word "expert," or because they had not been in situations where their duty required them to distinguish between genuine and counterfeit handwriting. Sweetser v. Lowell (1851) 33 Me. 446. In this case the court adopted the definition of "expert" found in Webster's dictionary: "Properly experienced; taught by use, practice, and experience; hence, skilful and instructed; having familiar knowledge of." A witness whose business for fifteen years had often required him to examine handwritings of many different people, and who had often made comparisons between handwritings to find out whether the handwriting was that of a certain person, is qualified to testify as an expert, although he says that he is not an expert in judging handwriting in the sense of making it his business. It is not necessary that a wit ness, in order to give his opinion on the comparison of handwritings, should claim to be an expert, or that he should possess the highest skill in detecting the differences or similarities in the use of the pen. Christman v. Pearson (1897) 100 Iowa, 634, 69 N. W. 1055. But in Lodge v. Phipher (1824) 11 Serg. & R. 433, it was held that a witness who had been a man of business and for many years president of an insurance company, who, though much conversant with writings, had never been employed in the business of detecting forgeries, was improperly allowed to testify as an expert. IV. Disclaimer of being an expert. The weight of authority seems to be to the effect that the fact that a witness does not claim to be an expert does not affect his competence as such, if he is otherwise qualified. To this effect are the cases of Sweetser v. Lowell (1851) 33 Me. 446; Hyde v. Woolfolk (1855) 1 Iowa, 159; Christman v. Pearson (1897) 100 Iowa, 634, 69 N. W. 1055; Com. v. Williams (1870) 105 Mass. 62; and TowER V. WHIP. But it has been held that a witness who testified that he did not profess to be, nor consider himself, an expert, and whose avocation in life that sued upon, he (Whip) did sign a paper of the character represented-a mere memorandum of his postoffice address, and not as a note-and that said unknown person fraudulently covered up the note and concealed its contents so that he (Whip) did not and could not know that he was signing a note, and that thus his signature to the note, if it was his signature, was obtained, and therefore he did not knowingly make the note, and that he was tricked into making it; and that the note was without consideration. The defendant filed plea No. 4, to the same effect; averring the note, under the facts of fraud and false pretense, to be a forgery, and that the plaintiff was not a purchaser of the note or value before maturity. did not qualify him in that regard, was improperly allowed to state his opinion as to the genuineness of a disputed signature from comparison. State v. Tompkins (1880) 71 Mo. 613, Following Wagner v. Jacoby, 26 Mo. 530, which decided that witnesses who had no previous knowledge of a handwriting alleged to have been altered, and did not profess to have any superior skill in such matters, should not be allowed to give their opinion as to the alteration, since the jury were as competent as they were to draw proper conclusions from the appearance of the instrument. V. Bank officers. Bank tellers and officers and others whose daily business and duties compel them to scrutinize and examine writings are always allowed to testify as experts respecting handwriting, and they may aid the jury in the comparison in a proper case. People v. Flechter (1899) 44 App. Div. 199, 60 N. Y. Supp. 777. Of this class of cases is TOWER V. WHIP. So an expert accountant who testified that he had been bookkeeper and teller in a bank, that he had made handwriting and signatures a scientific study, and had been called as an expert witness many times, but had never seen the person write whose signature was in dispute, was competent to testify by comparison. Hadcock v. O'Rourke (1889) 25 N. Y. S. R. 55, 6 N. Y. Supp. 549. Tellers in banking houses having four years' and two years' experience in such position, where they were daily passing upon the genuineness of signatures and paying hundreds of checks, who thought themselves experts, were competent to testify as experts by comparison. Speiden v. State (1877) 3 Tex. App. 156, 30 Am. Rep. 126. So of one who testified that he had been in banks for six years, that part of his business was the study of signatures, that he was accustomed to compare the bodies of notes and checks, but only for the purpose of enabling him to judge as to the genuineness of the signatures. Com. v. Williams (1870) 105 Mass. 62. There was no error in admitting as an expert a witness who testified that he had been for two years the individual bookkeeper at a national bank, that as such he was daily required to examine handwriting, and that he would know in a minute whether a check was all right or plea. Objection is made to plea 3 on the ground | fication that said affidavit must be filed with that it does not deny the fact that the sig nature to the note is the signature of Whip. The vital question in this case is, Did This point is not tenable. The plea says Whip make the note? He denied doing so, that Whip did not "make or sign" the note. by pleas 1 and 3. On the trial the plaintiff If he did not make or sign it, it is not his offered a witness as an expert, and proposed note, for then he neither made it himself, that he inspect Whip's signature to the afnor authorized another. Section 40, chap. fidavits of the four pleas filed by him, and 125, Code, only requires that, where a plead the signature of Whip to the note in suit, ing alleges that a person "made" a writing, and say whether the same person made the affidavit shall deny the making. The them, and proposed to prove by him that, affidavit is as broad and definite as the stat- in his opinion, the same person made all the ute demands. This plea was not necessary, signatures; but the evidence was rejected. but is good in itself, and operates also as In West Virginia it is settled law that the an affidavit to accompany the plea of nil genuineness of an instrument cannot be debet, which at common law puts the execu- proved or disproved by comparison with tion of the note in issue; and the effect of other writings. As a general rule, comparithat plea remains such yet, with the quali- ' son of handwriting is not allowed. State v. not; his answers showed that his knowledge of | admitted to testify as experts; and alhandwriting was superior to the knowledge of though mere observation, without either study the average juror, and his testimony was competent. Bradford v. People, 22 Colo. 157, 43 Pac. 1013. One who managed a bank for sixteen years, and had made the signatures to paper a study for twenty-five years, and considered himself competent to judge of the genuineness of writings; and one who had been cashier of a bank for five years, and could judge to his own satisfaction as to the genuineness of paper by comparison of signatures, but admitted that he might make a mistake,-were qualified as experts, and the weight of their testimony was for the jury. Forgey v. First Nat. Bank (1879) 66 Ind. 123. But a witness who had been engaged in the banking business about five years, and was more or less experienced in handwriting, although his clerks did most of his correspondence, and who did not consider himself an expert and had never been called upon to testify as such; who seldom had occasion in his business to compare handwriting, but thought that he could tell by comparing two writings whether they were writ ten by the same person, was not an expert. Heacock v. State (1882) 13 Tex. App. 97. VI. Public officers. More proof of experience is required in the case of persons who have merely held public offices of trust such as clerks or treasurers. A witness who testified that he was the county clerk, and that he had been employed in the clerk's office for nearly twenty-five years, during which time it had been his duty to compare the signatures of officials for certification with the genuine signatures in the office, and that the signatures certified amounted to about 3,000 in a year, but that he did not compare all of them, was erroneously excluded from testifying as an expert on the ground that, to qualify as an expert, it must be shown that he had made a special study of chirography. It was impossible to conceive that the witness did not by a long course of practice in comparing signatures and determining their genuineness acquire a special skill upon that subject not possessed by others, and it was upon this ground that officers of banks who have acquired their experience and skill in the practice of comparing signatures to checks, drafts, and notes passing through the banks with signatures known to be genuine were or practice, is not sufficient to qualify one as an expert, one may be so qualified by study without practice, or practice without study. Wheeler & W. Mfg. Co. v. Buckhout (1897) 60 N. J. L. 102, 36 Atl. 772. So one who swore that he had been register of deeds for ten years and engaged in business for forty years, that he was in the habit of comparing signatures to writing, and could give an opinion satisfactory to himself in regard to them; and one who testified that he had been register of deeds for two years and a clerk in a store and merchant for fifteen years, that he had frequent occasion to examine and compare handwritings, and that he could, by comparing two signatures, tell whether they were made by the same person,-were qualified as experts. Kornegay v. Kornegay (1895) 117 N. C. 242, 23 S. E. 257. A witness who was shown to have been county and district clerk for twelve years, to have had great experience in handwriting, and to have frequently testified in court as to the identity of handwriting; and a witness who had been president and cashier of a bank for a number of years, as such had become conversant with handwriting, and had frequent occasion to test the identity and genuineness of handwriting by comparison, were competent as experts, since ordinarily bankers, bank cashiers, and clerks of court are competent to testify on questions of handwriting. Bratt v. State (1897) 38 Tex. Crim. Rep. 121, 41 S. W. 622. One who had been a bookkeeper for many years, was secretary and treasurer of a city, and whose duty it was to compare handwritings to see which were genuine, and to examine checks and drafts, and who had been in the business fifteen years, and thought he had had such experience that he could tell a genuine paper from a forgery, was properly admitted to testify as an expert; and one who had been for four or five years register of deeds, was frequently called upon to prove signatures in the clerk's office of dead men's names, had used a magnifying glass to detect erasures, and had such experience that he could tell a genuine writing by comparison, State v. De Graff was qualified as an expert. (1893) 113 N. C. 688, 18 S. E. 507. But in order to qualify one to testify as an expert, it must not only appear that he has had an opportunity to study and acquire skill in Koontz, 31 W. Va. 127, 5 S. E. 328. I never | been subscribed by him, is in evidence for could see the soundness of this rule, but it some other purpose in the cause, the signawas well-settled common law in England ture or paper in question may be compared until statute wiped it away, and generally, with it by the jury." The disputed paper but not everywhere, prevailed in the United "may be compared with other writings by States. It came to this state from Virginia. such person proved or admitted to be genWe have always regarded this as the Vir-uine, and already properly before the court ginia rule, but, if so, Hanriot v. Sherwood, for other purposes, either as evidence in the 82 Va. 1, has overruled it. But concede such to be the law in West Virginia; yet has the Supreme Court said in Moore v. United States, 91 U. S. 270, 23 L. ed. 346: "The general rule of the common law disallowing a comparison of handwriting as proof of signature has exceptions equally as well settled as the rule itself. One of these exceptions is that, if a paper admitted to be in the handwriting of the party, or to have the particular matter, but also that he has done so; and from the statement of a witness that he has been clerk of a court for many years, and has had “a large acquaintance with handwriting," it cannot be inferred that he has acquired skill in the comparison of the signatures, which is the special learning required of an expert witness in regard to handwriting. Buchanan V. Buckler (1887) 8 Ky. L. Rep. 617. And a witness who had been a clerk in the United States district court between three and four years, and had done a good deal of copying and tracing of handwriting, figures, and signatures during that time, but had never before. been called upon to testify upon the similarity or dissimilarity of handwritings, nor employed in making such comparisons, although he had sometimes compared signatures of other persons when disagreements as to their genuineness had arisen in the course of his business, was not shown to be qualified as an expert. Goldstein v. Black (1875) 50 Cal. 462. And upon evidence merely that a witness was clerk of the court, without any reference to the length of time of such service, he cannot be regarded as qualified to testify as an expert upon comparison of handwriting. Winch v. Norman (1884) 65 Iowa, 186, 21 N. W. 511. There is nothing in the official employment of a clerk in chancery or his profession which proves that he has a higher degree of skill in judging of handwriting than such as is common to several large classes of individuals, so as to render him competent to testify as an expert. People v. Spooner (1845) 1 Denio, 343, 43 Am. Dec. 672. VII. Bias of the witness. Proof of strong prejudice on the part of an expert witness against one of the parties to an action involving forgery by that party may have the effect of rendering the witness absolutely incompetent, instead of merely affecting his credibility and the value of his evidence. So an inspector in the postoffice, who had been detailed by the Postoffice Department to collect the facts of a case of alleged criminal use of the mails, had obtained the testimony, and had busied himself in the beginning and prosecution of the case, was rejected as an expert to prove by comparison the handwriting of the papers in question. The court said in this case: "Where the person called to testify as an expert is one occupying the relation to the case, or as part of the record." 15 Am. & Eng. Enc. Law, 2d ed. p. 266. The defense on the trial stated that it was not admitted that the signatures to the pleas were in Whip's handwriting, but it was not denied. And is it not presumptive, in the case of a natural person, that a signature to a plea filed in court by him is his own, especially as it is certified to have been subscribed by him before the clerk? And he case which this one does,-saturated with bias against the defendant, honestly convinced of his guilt, and, in the conscientious discharge of his duty, seeking to bring him to punishment,—he can afford the jury no efficient aid in coming to a fair and impartial conclusion." United States v. Mathias (1888) 36 Fed. 892. An apparent authority to the contrary is found in Queen v. Silverlock [1894] 2 Q. B. 766, 63 N. J. Mag. Cas. N. S. 233, 10 Reports, 431, 72 L. T. N. S. 298, 43 Week. Rep. 14, 18 Cox C. C. 104, 58 J. P. 788, supra, III., where the solicitor for the prosecution was admitted as an expert to compare handwritings of the accused; but, although he was objected to as not being an expert, no objection seems to have been made on the ground of bias, and so the point was not, as far as is shown, considered by the court. In Fitzwalter Peerage Case (1843) 10 Clark & F. 193, however, an inspector of franks was rejected as an expert because his knowledge of the handwriting was acquired for the purpose of giving evidence upon it; but a solicitor who had become familiar with the handwriting through the course of his business in connection with the same case was admitted. VIII. Finality of the decision of the trial court. it would seem that the discretion of the court in the matter of the admission of witnesses as experts in handwriting is, generally speaking, not subject to review, except as it is reviewable in the similar matter of the competency of specimens of handwriting offered as standards of comparison, treated in the note to the case of Gambrill v. Schooley, ante, 427. In Massachusetts it has been held that the decision of the trial court determining, in the first instance upon the evidence produced, whether the witness offered is qualified by his peculiar skill, knowledge, and experience to testify as to his opinion as an expert, is not open to revision in another court. Marcy v. Barnes (1860) 16 Gray, 161, 77 Am. Dec. 405. So in Com. v. Williams (1870) 105 Mass. 62, it was held that there was no rule of law fixing the precise amount of experience or degree of skill necessary to constitute an expert, but that is all open to inquiry and proof at the trial; that it is only when there appears some error of law by the judge in determining the question of admissibility, or when there is no competent evldence to prove proper qualification of the wit proffered it as his, and it would be prima facie his until shown not to be his. It would be different with a paper not in the case. Here it was part of the record. Could it be questioned that the jury might compare the note with the pleas? I think not. But our question is, Can an expert make a comparison of these papers, and give his opinion? Yes, he can, because, if you once settle that a jury can do so, it is a subject of expert evidence. If the papers are such as to allow a comparison, expert evidence may be applied to them. Vinton v. Peck, 14 Mich. 287, is authority, not only to allow comparison with other papers already in the cause, but also to show that experts may be called to make the comparison, and that it is better that the jury have the aid of experts, as few of us are competent to do so with success. 1 Greenl. Ev. § 578a, thus ness, that the decision of the presiding judge is reversed on exceptions. And it is said in Com. v. Nefus (1883) 135 Mass. 533, that the competency of an expert depends very much upon the discretion of the presiding judge, and an exception to his decision will rarely be sustained. The competency of expert witnesses is a question largely within the discretion of the trial court, and its rulings thereon will not be reversed uniess clearly erroneous as a matter of law; and the rule was applied where the qualifications of a witness "were not extensive." Schmuck v. Hill (1901; Neb.) 96 N. W. 158, Citing Missouri P. R. Co. v. Fox, 60 Neb. 531, 83 N. W. 744, a decision as to another kind of expert. states the law: "Where other writings, admitted to be genuine, are already in the case, here the comparison may be made by the jury, with or without the aid of experts." In Hanriot v. Sherwood, 82 Va. 1, expert evidence to make such comparison is held proper. In Springer v. Hall, 83 Mo. 693, 53 Am. Rep. 598, it is held that such expert evidence may be used to compare. This case is cited by the defense to show that comparison cannot be made with papers made after suit, but there the defendant proposed to use his signature to his own pleadings to prove that he did not make the note. Any amount of law can be cited to show that experts may compare writings and give their opinions. Rogers, Expert Testimony, § 133; State v. Thompson, 80 Me. 194, 13 Atl. 892. Much case law is cited to show that expert testimony is weak and una witness must have in order to qualify as an expert for comparison. Mere opportunity for observation, however, without actual application and study, is never sufficient for this purpose; the witness must have made a special study of the subject of handwriting, or he must have been frequently engaged in the scrutiny and comparison of handwritings as a part of his business or in the performance of his duties. And there is no distinction, in respect of qualification of an expert to compare handwriting, between those who have seen the person write whose signature is in dispute and those who have not. (II.) The real test being the amount of knowledge and experience possessed, it is not necessary that the expert should be one whose business is that of examining and comparing handwritings, or one, whose knowledge and experience have been obtained in the course of his profession or In New York it must of necessity rest in the main with the trial judge to determine whether a particular witness has the essential qualifications, and his decision will not be held to pre-employment. (III.) sent an error of law requiring a reversal, unless it is against the evidence or plainly without support in the facts appearing in the case. People v. Fletcher (1899) 44 App. Div. 199, 60 N. Y. Supp. 777. Where the line between an expert and a nonexpert should be drawn must, under the varying conditions of cases and their environment, necessarily be laid down by the judex fori; and the court of appeals will not reverse on account of the judgment of the lower court on this point, unless it is clear that the lower court was in error in respect to the qualifications of the witness, and that this error was injurious. Powers v. McKenzie (1891) 90 Tenn. 167, 16 S. W. 559. In Texas, as a general proposition the qualification of the witness to testify as an expert is a question for the trial court, whose decision is not generally reviewable on appeal; if it appear that the witness has any claim at all to the title of expert, an appellate court will not reverse because his experience is not sufficiently special. Bratt v. State (1897) 38 Tex. Crim. Rep. 121, 41 S. W. 622. IX. Summary. There seems to be no test by which one can determine with mathematical precision how much experience or knowledge of handwriting And the fact that a witness offered as an expert does not claim or consider himself to be an expert is not enough to disqualify him, although with other facts it may be evidence of lack of experience. (IX.) Paying tellers and other officers of banks are generally accepted as experts on handwriting without much proof of knowledge, and the fact of performance of the duty of such an officer for several years is usually sufficient. (V.) But in the case of public officers in the course of whose duty it is necessary, among other things, to pass upon the genuineness of papers and documents, more proof is usually necessary, and mere proof of the holding of such an office, without reference to the length of time, is not enough. (VI.) Bias of the witness against a party accused of forgery, and honest belief in his guilt, are enough to disqualify him as an expert, without any reference to his real knowledge and skill; the reason being that one so prejudiced can give the jury no real aid in forming an impartial judgment. (VII.) The decision of the trial judge in rejecting or accepting a witness as an expert is not generally subject to review, unless it was clearly erroneous, against the evidence, or without support from the evidence, and unless, also, the er ror was injurious. (VIII.) L. B. B. |