Where a court on the preliminary examination of a witness can
see that he has that degree of knowledge of a party's handwriting
which will enable him to judge of its genuineness, he should be
permitted to give to the jury his opinion on the subject, though he
have never seen the party write nor corresponded with him.
Rogers brought ejectment against Ritter in the court below to
recover a lot of land in San Francisco known by the name of Yerba
Buena. The plaintiff having given in evidence various deeds and
rested, the defendants offered a writing, dated Yerba Buena,
December 5, 1845, purporting to be a petition by one Briones for
the grant of the lot, under which was written an instrument dated
December 7, 1845, purporting to be a grant of the lot by "the
citizen Jose de la Cruz Sanchez, justice of the peace of the
jurisdiction." The "grant" was objected to on the ground that the
name of Sanchez was forged. To prove its genuineness, the defendant
called three witnesses. One Sears, who had been clerk in the
recorder's office of San Francisco for eight years, and having the
especial charge of the records; R. C. Hopkins, who had resided in
California for fourteen years, had had charge of the Spanish
archives in the office of the Surveyor General of the United States
for California for nine years, "whose business called upon him to
investigate questions of the genuineness of documents," and who
"thought that he had a facility from his profession of detecting
writing which was not genuine;" and one Fisher, who had been in
California for fourteen years and was secretary, interpreter, and
custodian of the archives for over four years, and until its
expiration, of the Land Commission of the United States, which sat
in California under the Act of March 3, 1851.
In order to lay a foundation for his competency, each witness,
as called, was requested to state whether he was acquainted with
the handwriting of Sanchez and to give his
Page 79 U. S. 318
means of knowledge. Each and all answered that they were
familiar with it, and told how they knew it.
Sears had frequently seen it in his office, and had
many times made certified copies of the papers to which it was
attached, for the use of the courts, and knew it to his own
satisfaction. In speaking of it and the handwriting of another
person, he said, "I have seen so many instruments and papers
passing through my hands that these signatures (naming them) are
like household implements with us." But he had not corresponded
with Sanchez nor actually seen him write.
Hopkins had examined the correspondence of Sanchez,
while justice of the peace, with the governor, and other papers in
the archives to which his signature was affixed, quite often, and
conceived himself, therefore, well acquainted with it; "I think,"
was his testimony, "no one living is so familiar with these
California archives as I am." But he had not corresponded with
Sanchez nor actually seen him write.
Fisher testified that he thought that he would know the
signature of Sanchez because he had the custody, during the whole
term of the board of land commissioners, of all the depositions
taken by them, and acted as interpreter for those who could not
speak the English language. The party making the depositions was
required, as the witness testified, to sign them after one of the
commissioners had administered the oath. Then they passed into
Fisher's hands as secretary, who endorsed them and put them among
the papers of the case. Sanchez's testimony with many others, was
taken, and although Fisher could not swear he had actually seen him
write his name, he believed he had, and at any rate he should know
his signature from having seen it to the depositions.
The circuit court, after the witnesses had stated the manner in
which they formed their knowledge of the handwriting of Sanchez,
allowed them, exception being duly taken, to testify whether his
signature to the grant in controversy was genuine or not. And they
testifying that they believed it to be genuine, the grant was
allowed to go to the
Page 79 U. S. 319
jury, no objection being taken to it from the fact of its
purporting to be made by a "justice of the peace of the
jurisdiction," A.D. 1845.
Verdict and judgment having gone for the defendant, the case was
brought here.
It was one incident of the trial that Sanchez himself, who was
alleged to have made the grant, swore that though he had been "a
justice of the peace of the jurisdiction" in 1845, he had never
made this grant nor any grant of the lot in controversy; as it was
another that Hopkins, who was examined to rebut the evidence of
Sanchez, testified that he
"knew it to be generally the case, or sometimes the case, that
in regard to the genuineness of the signatures and acts of officers
of the old Mexican government, the true test is not what they will
swear to, but the testimony of experts. "
Page 79 U. S. 320
MR. JUSTICE DAVIS delivered the opinion of the Court.
The objection to the grant, which, supposing it genuine, is
insisted on in the first place, in this Court, by the counsel of
the plaintiff in error, presents a question which in the state of
the record this Court is not called upon to decide, for it does not
appear that the objection was taken in the court below. It is true
that the grant was attacked there, but on an entirely different
ground. The main controversy concerning it was whether or not it
was genuine. Its validity, if genuine, does not seem to have been
questioned. We are not, therefore, required to travel through the
various laws of Mexico, the acts of California governors, and the
proceedings of departmental assemblies to determine at what period
of time the powers of justices of the peace, acting as alcaldes, to
grant building lots within their jurisdiction, ceased.
It is insisted, in the second place, that comparison of
handwriting is in no case legal evidence, and as it was admitted to
prove the genuineness of the disputed paper, the judgment should on
that account be reversed. It is certainly true that the ancient
rule of the common law did not allow of testimony derived from a
mere comparison of hands, and equally true that there has been a
great diversity of opinion, in the different courts of this
country, in relation to this species of evidence. But in England
this rule of the common law, as it respects civil proceedings, has
been abrogated by the legislature, so that in the courts there at
the present day, in civil suits, the witness can compare two
Page 79 U. S. 321
writings with each other in order to ascertain whether they were
both written by the same person. [
Footnote 1] It is, however, not necessary for the purposes
of this case to discuss the subject in all its bearing, nor to
depart from the rule laid down by this Court in
Strother v.
Lucas [
Footnote 2] that
evidence by comparison of hands is not admissible when the witness
has had no previous knowledge of the handwriting, but is called
upon to testify merely from a comparison of hands. The witnesses
who testified in this case had previous knowledge of Sanchez's
handwriting. It is true this knowledge was not gained from seeing
him write, nor from correspondence with him, but in a way equally
effectual to make them acquainted with it. Sanchez was for many
years, under Mexican rule in California, in official position,
acting as justice of the peace, transacting the duties of alcalde,
corresponding with the governor, and exercising for a time the
power conferred upon him to grant small parcels of land to
deserving persons. [
Footnote 3]
Necessarily, in the course of the administration of the duties of
his office, he had occasion frequently to attach his signature to
papers of importance. These papers, after the United States took
possession of the country, were deposited in the recorder's office
of San Francisco and the surveyor general's office, where the
Mexican archives are kept. Sanchez also, as did most of the native
Californians and Mexicans who had been in public life, appeared
before the United States Land Commission, which sat in San
Francisco to determine the validity of Spanish grants, and gave his
depositions. These depositions, with the other papers of the
commission, at the expiration of it, were taken to the office of
the Land Commissioner at Washington. As no question was raised on
the trial of the genuineness of these various writings -- Sanchez
was present and interposed no objection -- they must be considered
if not as having been acknowledged by him, at least as having been
proved to the satisfaction of the court.
In this condition of things, Sears, Hopkins, and Fisher
Page 79 U. S. 322
were called upon to testify upon the subject of the disputed
signatures, and the inquiry is did the court err in its ruling on
this point? Obviously the evidence is not obnoxious to the
objection that it is a mere comparison of hands -- that is, a
comparison by a juxtaposition of two writings in order to enable a
witness, without previous knowledge of the handwriting of the
party, to determine by such comparison whether both were written by
the same person.
The witnesses in this case were conversant with the signature of
Sanchez, and swore to their belief not by comparing a disputed with
an acknowledged signature, but from the knowledge they had
previously acquired on the subject. The text writers all agree that
a witness is qualified to testify to the genuineness of a
controverted signature if he has the proper knowledge of the
party's handwriting. The difficulty has been in determining what is
proper knowledge, and how it shall be acquired. It is settled
everywhere that if a person has seen another write his name but
once, he can testify, and that he is equally competent if he has
personally communicated with him by letter, although he has never
seen him write at all. But is the witness incompetent unless he has
obtained his knowledge in one or the other of these modes? Clearly
not, for in the varied affairs of life there are many modes in
which one person can become acquainted with the handwriting of
another besides having seen him write or corresponded with him.
There is no good reason for excluding any of these modes of getting
information, and if the court, on the preliminary examination of
the witness, can see that he has that degree of knowledge of the
party's handwriting which will enable him to judge of its
genuineness, he should be permitted to give to the jury his opinion
on the subject.
This was done in this case, and it is manifest that the three
witnesses told enough to satisfy any reasonable mind that they were
better able to judge of the signature of Sanchez than if they had
only received one or two letters from him, or saw him write his
name once.
Judgment affirmed.
[
Footnote 1]
2 Taylor on Evidence §§ 1667-1668.
[
Footnote 2]
<|6 Pet. 763|>6 Pet. 763.
[
Footnote 3]
Colonial History of San Francisco, by Dwinelle.
