Opinion
Hearing Granted by Supreme Court Dec. 21, 1933.
Appeal from Superior Court, Los Angeles County; William C. Doran, Judge.
Jack Gaines was convicted of forgery and grand theft, and, from an order denying motions for new trial, he appeals.
Affirmed.
COUNSEL
Paul E. Gehres and R. C. Pardoe, both of Stockton, for appellant.
U.S. Webb, Atty. Gen., and James S. Howie, Deputy Atty. Gen., for the People.
OPINION
YORK, Justice.
The appellant was tried upon an indictment containing ten counts charging him with the offense of forgery, and upon two informations containing ten counts charging him with the offense of grand theft. From judgments of convictions on all counts charged in said indictment and informations, and from the orders of the trial court denying his motions for a new trial, appellant prosecutes this appeal.
Defendant was charged with the theft of $9,500 in money, the personal property of Lola Carr Harman, real property of the value of $10,000 belonging to said Lola Carr Harman, and stock of the J. C. Penny Company of the value of $92,716.25, also the property of said Lola Carr Harman. In addition, he was charged with the theft of $350 in money, the property of C. M. and Ruth Bowler. The indictment charged the forging of the name of Lola Carr Harman to ten stock transfers and assurances and letters of attorneys, and the revocable power to receive and transfer certain stock certificates of the J. C. Penney Company.
As a defense, appellant claimed that he had formed a partnership with Mrs. Harman for the purpose of conducting and maintaining a general brokerage and real estate business, and that, in pursuance of that association and relationship, appellant was to continue his already established business as a real estate broker, but on a more expanded and extensive scale, due, in the main, to the fact that the said Lola Carr Harman had and did agree to furnish large sums of money to be used in the conduct of the business of making property loans, and that all profits--the result of said loans--were to be shared equally by appellant and said Lola Carr Harman. In her testimony, the said Mrs. Harman denied the existence of such relationship, and charged that appellant at various times had forged her name and signature to certain documents, instruments, and securities, and, by reason of such forgeries, appellant secured divers sums of money and converted the same to his own personal use.
It is contended by appellant that, since he "admitted the receipt of the money and property in question, as alleged in the counts for grand theft and upon which he was being tried, and advanced no theory or defense other than his contention that he did so, not with a felonious intent, but by virtue of an agreement between himself and the said Lola Harman that the property should be used in their common business enterprise, then the paramount and vital issues of fact of the cause were: 1. Did such an agreement exist as between appellant and the said Lola Harman, and 2. Did the appellant forge the signatures to the several documents in question or did the said Lola Harman actually sign them as contended by appellant."
Predicated upon this theory, appellant contends that the trial court erred in refusing to grant defendant’s handwriting witness sufficient time to complete his investigation of the handwriting in issue before offering his testimony--such testimony to be offered for the purpose of rebutting expert evidence which had been given by witnesses on behalf of the people in an effort to prove that forgery had been committed by appellant. Appellant also alleges error on the part of the trial court in sustaining the people’s objection limiting scope of expert testimony; in refusing to give certain instructions requested by defendant; and in refusing to direct the jury to return a verdict in favor of defendant.
The trial of this case was begun in the superior court on October 11, 1932; on October 13, three handwriting experts testified for the prosecution, at which time certain exhibits involving both the handwriting of the defendant and the handwriting of the complaining witness were introduced in evidence. On October 20, 1932, counsel for defendant asked the court for a recess until the following morning "so that we can have the benefit of the examination by a handwriting expert." The court refused this request, but did grant a recess until 2 o’clock of the same day, at which time the attorney for defendant called as his witness, Milton Carlson, handwriting expert, and by his testimony sought to rebut evidence given by handwriting experts, who had previously testified in favor of the prosecution. Since the testimony which appellant sought to rebut was given on October 13, 1932, we are of the opinion that sufficient time intervened between that date and October 20th, the date upon which Mr. Carlson was called, within which he could have made an examination of the exhibits referred to, and that no error was committed by the trial judge in refusing to grant a recess until the next day.
" ‘It is a settled rule of practice that an application for a continuance is addressed to the sound discretion of the trial court, and its ruling will not be reviewed except for the most cogent reasons. The trial court is apprised of all the circumstances of the case and the previous proceedings, and is therefore better able to decide upon the propriety of granting the application than an appellate court; and when it exercises a reasonable and not an arbitrary discretion, its action will not be disturbed.’ 5 Cal.Jur. 968." People v. Collins, 195 Cal. 325, 332, 333, 233 P. 97, 100. There is nothing in the record that suggests the exercise of an arbitrary discretion of the trial court in refusing to grant the recess here referred to.
Appellant’s contention that the trial court erred in limiting the scope of expert testimony is without merit. The handwriting expert, when asked if he had come to any conclusion regarding the questioned documents, particularly as to whether or not they had been written by defendant or by Mrs. Harman, answered, "As a definite conclusion, I have not." A further question as to whether or not he had come to any conclusion with regard to the characteristics of the handwriting of either party was answered in the affirmative. Thereupon he was asked by counsel for the defendant to point out to the jury the various characteristics in the respective handwritings which would indicate, or would not indicate, that Mrs. Harman may have been the author thereof. This was objected to by the prosecution on the ground that the witness had already stated he had not come to any conclusion about any questioned document in the case, which objection was sustained by the court. In sustaining further objections to the same line of questioning, the court said (Tr. p. 729): "A witness is entitled, under the exception of the rule to express his opinion. It is not a proper function of an expert to come here and point out a lot of similarities, and dissimilarities, without expressing an opinion. Anyone can do that. Objection sustained."
We find no merit in appellant’s contentions that the court erred in refusing to give to the jury certain instructions requested by defendant, nor in refusing to direct the jury to return a verdict in favor of defendant. So far as appears, the instructions given by the court to the jury covered the same subjects, and covered them correctly. Appellant should have pointed out the omissions, if any. Rule VIII, subd. 3.
The judgments of conviction are affirmed. The orders denying motions for new trial are affirmed.
I concur: CONREY, P. J.
HOUSER, Justice.
I dissent. My disagreement with the conclusion reached by my associates arises from the persistent refusal by the trial court, in response to a question propounded by counsel for defendant, to permit a witness who theretofore had qualified as an expert on the subject of handwriting, but who stated that, because of lack of sufficient time within which to make a proper examination of the several examples of handwriting in evidence in the action, he could not express "a definite conclusion" or opinion with reference to the identity of the person who had executed such exemplars--to "point out to the jury the various characteristics in the respective handwritings which indicate, or do not indicate, that Mrs. Harman (the prosecuting witness) may have been the author thereof." And in that connection attention is directed to the following questions as examples of the many attempts that were unsuccessfully made by counsel for defendant to indicate some of the "various characteristics" in the handwriting of the prosecuting witness, and thereby to introduce evidence which at least was calculated to establish a reasonable doubt regarding the guilt of defendant, to wit:
"Q. By Mr. Bird: Mr. Carlson, I will call your attention to People’s Exhibit 9, consisting of the photographic picture of fifteen signatures, the top ten being the name ‘Lolo Carr Harman,’ on People’s Exhibit 5, a questioned document or a series of questioned documents, and the bottom five being the same name as it appears in People’s Exhibit 6. I call your attention now to the capital letter ‘L’ as it appears on the lower part of Exhibit 9, and as it appears upon the five documents in Exhibit 6. I will ask you if in your examination of any of the exemplars of Mrs. Harman’s handwriting you found any capital ‘L’s’ unlike the particular five that were here shown to you. * * *
"Q. By Mr. Bird: I will call your attention to the capital letter ‘L’ in the various questioned documents and more particularly to the little upstroke at the end of the ‘L’, which I will illustrate on the blackboard, right there at the end (indicating), a kind of an upstroke at the end of the capital letter ‘L’, and ask you if in examining any of the exhibits offered here as exemplars of Mrs. Lola Harman’s handwriting you found that she ever formed capital ‘L’s’ in that form or with that characteristic? * * *
"Q. By Mr. Bird: Now, I want to call your attention to the power of attorney attached to certificate number NC-11879, comprising part of People’s Exhibit 5, and more particularly to the finishing of the capital ‘H’, which appears to be in this form--kind of a snailshell nature. I want to ask you if you found any of the ‘H’s’ written--capital ‘H’s’--written by either the defendant C. Jack Gaines as you have witnessed them or by Mrs. Harman that were so written other than that one?"
In ruling upon objections interposed by the people to such line of questions, the attitude of the trial judge with reference thereto is aptly shown by the following statements made by him:
"* * * Objection sustained. He says he has not reached a conclusion, so what difference does it make if he goes on and talks about a thousand similarities or dissimilarities, of what good are they to anybody if they are of no value to him? * * * It is not a proper function of an expert to come here and point out a lot of similarities, and dissimilarities, without expressing an opinion. Anyone can do that. Objection sustained."
It thus appears that the ruling made by the trial judge was founded upon the theory that, unless an expert witness first express an opinion with reference to the existence of the ultimate fact at issue, he may not testify to any fact or facts within his knowledge as an expert upon which a decision or a conclusion upon such ultimate fact might possibly be based.
At the outset, it may be observed that the identification of handwriting is so generally regarded as a subject for the introduction of expert or opinion evidence that the citation of authority in that connection is deemed unnecessary. In fact, the propriety or the admissibility of such evidence is recognized by the provisions of two separate statutes in this state. In effect, subdivision 9 of section 1870 of the Code of Civil Procedure provides that "the opinion of a witness respecting the identity or handwriting of a person, when he has knowledge of the person or handwriting; his opinion on a question of science, art, or trade, when he is skilled therein; " may be given in evidence. And by section 1944 of the same Code it is provided that: "Evidence respecting the handwriting may also be given by a comparison, made by the witness or the jury, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge."
By the provisions of no statute, nor by ruling of any court to which attention has been directed, may there be found any indication that in law the opinion of an expert witness regarding a fact at issue, together with the several facts upon which the opinion of the expert may be predicated, must be testified to by the same witness. Indeed, in many matters, and especially in those wherein specialists either in medicine or in surgery are frequently called as expert witnesses, the common experience of courts is that the foundational facts regarding symptoms of specific disease, or pathological conditions, are introduced in evidence by the testimony of either lay or expert witnesses; and that, based upon such assumed facts, and through the medium of a "hypothetical question," the final opinion of the specialist or the expert is given in evidence. In such circumstances, it is apparent that the foundational facts not only are separable, but actually are separated from the ultimate fact at issue, and that such foundational facts are wholly distinct from the conclusion reached with reference thereto.
To some extent treating the question here involved, in 11 Ruling Case Law, at page 573, among other things, it is said: "* * * It may be stated as a general proposition that there are two classes of cases in which expert testimony as to the facts is admissible. To the one class belong those cases in which the conclusions to be drawn by the jury depend on the existence of facts which are not common knowledge and which are peculiarly within the knowledge of men whose experience or study enables them to speak with authority upon the subject. * * * In the other class we find those cases in which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend on professional or scientific knowledge or skill not within the range of ordinary training or intelligence. In such cases not only the facts, but the conclusions to which they lead, may be testified to by qualified experts. * * *"
And in 10 California Jurisprudence, p. 960, the following statement of the law may be noted: "In the other class are found those cases in which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence. In such cases not only the facts, but the conclusions to which they lead, may be testified to by qualified experts. The distinction between these two kinds of testimony is apparent. In one kind the facts are to be stated by the experts and the conclusion is to be drawn by the jury; in the other, the expert states the facts and gives his conclusion in the form of an opinion which may be accepted or rejected by the jury. If the knowledge of the experts consists in descriptive facts which can be intelligently communicated to others not familiar with the subject, the case belongs to the first class." See, also, same volume, at page 964.
As hereinbefore has appeared, by the terms of section 1944 of the Code of Civil Procedure, "evidence respecting the handwriting may also be given by a comparison" of several writings "admitted or treated as genuine," etc. By no express language contained in the statute is it provided, nor may it properly be inferred therefrom, that before a "comparison" may be made it is necessary that the witness express an opinion regarding the result of such comparison. It is true that in the following subdivision of the same statute (subdivision 10 of section 1870), in a case in which the issue of the "mental sanity" of some person is involved, provision is made for enabling an "intimate acquaintance" to give his opinion "respecting the mental sanity of a person, the reason for the opinion being given. * * *" But no such situation is here under consideration; nor have the provisions of that statute any application to the facts here involved. It is plain that in making a "comparison" the witness should not be restricted or limited to generalities, but that, in the interest of the administration of justice, he should be privileged to attract attention to such specific details as may appear to be helpful in determining the issue. In other words, he should be permitted "to point out to the jury the various characteristics of the respective handwritings which indicate, or do not indicate" that a certain conclusion is, or may be, well founded. As is stated in 10 Ruling Case Law, at page 994: "* * * It is now generally recognized that a comparison of writings is a rational method of investigation, and that similarities and dissimilarities thus disclosed are probative, and as satisfactory in the instinctive search for truth as opinion formed by the unquestioned method of comparing the signature in issue with an exemplar of a person’s handwriting existing in the mind and derived from direct acquaintance, however little, with that handwriting. If the discovery of truth is the object of evidence, it must be admitted that in doubtful cases the jury, after hearing other testimony, may be much assisted by a comparison of hands. And the court or jury in making the comparison and reaching a conclusion therefrom is held to be entitled to the aid of expert witnesses."
And again, in 11 Ruling Case Law, at page 590, it is said: "Any subject wherein a person may become specially learned or skilled is within the broad field of opinion evidence. Thus, experts may be examined to explain terms of art, and the state of art, at any given time. They may explain to the court and jury the machines, models, or drawings exhibited. They may point out the differences or identity of the mechanical devices involved in their construction. * * *" In that connection, as tending to the same effect in regard to the principle here involved, the cases of People v. Weber, 149 Cal. 325, 86 P. 671, and People v. Wilson, 14 Cal.App. 515, 112 P. 579, are in point.
In Rogers on Expert Testimony, at page 303, it is said: "Expert testimony is admissible as to the characteristics of different signatures * * *"--citing Riordan v. Guggerty, 74 Iowa, 688, 39 N.W. 107, 108. In the cited case it appears that the Iowa statute is a practical duplicate of section 1944 of the Code of Civil Procedure of this state. It was there held that it was proper to permit "witnesses, examined with reference to the genuineness of the signature to the note in suit * * * to testify as to the characteristics of different signatures in evidence, including that attached to the note, the comparative size and length of these signatures, whether written on or above or below the lines designed for them, the differences in certain letters, and other facts of like character." It was further stated therein that "it is insisted by appellant that the court erred in permitting this testimony to be introduced, for the reason that the facts to which it was directed did not require the testimony of an expert, but could have been determined by the jury. There are at least two answers to this claim of appellant: * * * (2) It was confined to the signature in controversy, and to others admitted to be genuine, and was therefore authorized by section 3655 of the Code" (which, as hereinbefore indicated, is practically identical with section 1944 of the Code of Civil Procedure of this state).
To my mind, that which herein is assumed to have been error committed by the trial court was so prejudicial to the substantial rights of defendant that because thereof the judgment rendered against him should be reversed and a new trial granted.