Opinion
(Filed 5 March, 1924.)
Evidence — Expert Opinion — Handwriting — Criminal Law — Larceny.
Where relevant to the inquiry in a criminal action for the stealing of an automobile to show that the accused was present in a certain city at the time thereof, which the defendant denied and has offered evidence to the contrary, it is competent for a witness to offer in evidence a leaf cut by himself from a hotel register indicating the name of the hotel and dates of registration of guests, with the surname of the accused entered thereon under the date of the commission of the crime, and to testify that it was a leaf from the hotel register then kept for the registration of guests, with an entry of one under the surname of the accused, but with different initials, and, under C. S., 1784, for experts in handwriting, by comparison, to testify their opinion that the person who made the entry on the hotel register was the same as the one who signed certain papers introduced upon the trial and admitted to be in the handwriting of the accused.
APPEAL by defendant from Bond, J., at June Term, 1923, of DURHAM.
Attorney-General Manning and Assistant Attorney-General Nash for the State.
Hammer Moser for defendant.
ADAMS, J., dissenting; STACY, J., concurring in the dissenting opinion.
The defendant was convicted of the larceny of an automobile, and from the judgment on the verdict appealed.
The automobile was stolen from the garage of Dr. Bowling, the owner, on the night of 10 September, 1920, between 10 o'clock at night and daylight. He offered a reward of $100 for its recovery, but did not locate it until 6 October, 1921, at Winston, N.C. The car was completely identified, although on inspection it was found that the number and marks on the engine and carburetor had been knocked off with a chisel and mutilated. It was found in the possession of one Gordon, who purchased it from Roy Ingram, who himself purchased it from the defendant in the latter part of February, 1921.
The defendant testified that he got the car from one Bill York, at Cheraw, S.C., on election day of the year 1920, but produced no other evidence than his own statement of this. Thus the car was traced to the possession of the defendant a little less than two months after it was stolen. The State, in order to connect the defendant with the theft, introduced evidence to show that he was in Durham at the time the car was missed. C. E. Stewart, witness for the State, showed a paper which purported to be a printed leaf out of the register of the Church Street Hotel, in Durham, and testified: "I got that paper from the register at the Church Street Hotel. I personally took it out of the Church Street Hotel register. Mr. Clayton was with me when I took it out. I got it a week or two after Dr. Bowling's car was found." The entry upon this sheet in the register was dated 10 September, 1920, and the name appearing thereon was signed "F. D. Hendricks." Expert witnesses, under the statute (C. S., 1784), were introduced to compare this entry on the Church Street Hotel register on 10 September, 1920, with the admitted signatures of the defendant to the bonds executed in this cause, and also an affidavit filed by the defendant in the cause.
The defendant excepted to the refusal of a judgment of nonsuit.
Both the defendant and his wife pleaded an alibi on 10 September, 1920. The defendant testified: "On the night of 10 September, 1920, I was out about five miles from High Point, at my aunt's, Annie Allred. I was not in Durham that night. I never stayed all night in Durham in my life." The wife testified that they were out at his aunt's house the night of 9 September, and further testified that her husband was in High Point between 9 September and election day.
Upon the verdict of guilty the defendant appealed.
C. S., 1784, provides: "In all trials in this State, when it may otherwise be competent and relevant to compare handwritings, a comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses, and such writing and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness, or otherwise, of the writing in dispute." In this case it was a link in the evidence for the State to prove the presence of defendant Hendricks at Durham on 10 September, 1920, when the automobile was stolen, and, to prove this fact, a paper-writing purporting to be a leaf, with the printed heading, from the register of the Church Street Hotel, bearing date 10 September, 1920, was introduced for the purpose of proving that the name therein registered was in the handwriting of the defendant. Proof of his handwriting was, therefore, relevant and as a basis for comparison of the signature in controversy with his admitted handwriting on the papers in this action with the signature on the leaf was competent when properly identified and authenticated.
The defendant makes two objections to the admission of this evidence — first, that the paper itself was not sufficiently identified as the register of this particular hotel; and second, even if it had been so identified, it was not admissible in evidence against this defendant.
The evidence of the witness Stewart is clear and distinct that this sheet was taken by himself from the register of the Church Street Hotel. It was not necessary to introduce the clerk of the hotel to prove that the defendant made this signature upon such register. The evidence of the witness Stewart that it was a part of that register, bearing date of 10 September, 1920, if believed, which was a matter for the jury, was sufficient to identify the paper as a part of the register of the hotel; and second, the experts testified that the signature upon that sheet of the register was in the same handwriting, in their opinion, as that on the bonds and affidavit; and the defendant himself claimed that he had a brother, named F. D. Hendricks, but that this signature was not in his handwriting.
It has been held that such registers are admissible both as to the party writing the name on the register and the date on which it was written. In Latham v. State, 172 S.W. (Texas), 801, it is said: "He had the hotel register with him, which was identified by him as such at the time. The best evidence of the fact was the hotel register with her signature thereon." There was a rehearing in that case, in which the original decision of the court was reversed on another point, but the Court said: "Now, what would be the best or primary evidence that she had registered under the name of Mrs. C. C. Evert? There can be no question that the register of the hotel would be the best evidence of that fact."
In James v. Conklin, 158 Ill. App. 643, it is said: "We do not think the court erred in admitting in evidence the hotel register and expense account of Kurtz. They were competent as bearing upon the contention of appellee that Kurtz was not in Olney on 28 August, 1905, and for that reason he could have been at appellant's place of business on that day, the date of his receipt to the bills in question."
The evidence in this case by Stewart is that he cut this particular leaf with this signature out of the register of the Church Street Hotel, bearing date 10 September, 1920, and that he cut it out in the presence of Clayton, and that there has been no alteration or change in the leaf since he had thus cut it out. Of the truth of his statement the jury was the sole judge.
The expert witnesses having further testified as authorized by C. S., 1784, that in their opinion the handwriting on this leaf of the register was the same as that of the signature of the defendant to the bond and other papers in this cause, there was no error in leaving the case to the jury.
It is not essential that the hotel register itself must be brought into court and by its proper custodian. It is sufficient if it is proven to the complete satisfaction of the jury that this particular sheet, with this signature, was taken from the hotel register bearing the date in question, and that the experts could satisfy the jury that the signature on that sheet was made by the same hand which wrote the name of the defendant on the papers in this cause. A letter or any other paper with similar identification of the time and place where written would be competent.
The contents of the hotel register is not to be proven, nor is it introduced to prove any other fact than that the signature on that leaf was made by the defendant with the identification of the time and place. It is no act of the hotel, but merely the presence of the defendant in Durham which is sought to be proved.
The defendant further assigns as error that the court charged the jury that the expert witness, Jones, testified that he examined the sheet which Stewart had testified he had taken from the Church Street Hotel register in Durham, bearing date 10 September, 1920, and that, comparing that sheet with the other three papers that were admitted to be in the handwriting of the prisoner, the expert testified that in his opinion all four — that is, the word "Hendricks" in all four of the names — was the same handwriting, and that the same hand did the writing; and also assigns as error that the court charged the jury: "The State contends that this defendant was here in Durham the night that the car was taken; that the hotel register leaf kept entries made as people would come in, day by day, showing the time of arrival and departure of different people, the number of room, etc.; that it shows that on Friday, 10 September, 1920, a man registered there as F. D. Hendricks; that he was assigned to room 8; that he arrived at 7:45, whether in the morning or evening does not appear, and that he left, after paying a bill which had run up to $3. The State contends that you ought to find from the evidence in this case that the hand that wrote the word `Hendricks' was that of the prisoner, and contends that there is a paper here that it is admitted — three papers — all three of which have the word `Hendricks,' not the same initials, but the same surname, and the State contends you ought to find as a fact the word `Hendricks' in all four of them was written by the prisoner, and that they ought to convince you that he was here in Durham on the day or during the night on which Dr. Bowling's car was stolen."
The defendant further assigns as error the additional contention of the State that, in the face of these facts — that a man with a stolen car, as the State contends, in his possession, with the number which would serve to identify the car chiseled out, but with the car identified, in his possession, and with the hotel register showing his presence in Durham the identical night the car was stolen — the State contends you ought to find beyond a reasonable doubt that the prisoner is the man who stole and carried away the Hudson Super-Six that belongs to Dr. Bowling."
These were correct statements of the contentions of the State. If the jury believed, of which they were the sole judges, that the hotel sheet shown in evidence was cut by Stewart from the Church Street Hotel register, in Durham, bearing entries for the date of 10 September, 1920, and that the same had not been altered, it was not necessary that the whole hotel register should have been put in evidence, nor that it should be produced by its custodian. The essential fact is, was it the leaf of the hotel register of that date, and if so, it was competent to be put in evidence and for experts, under the statute (C. S., 1784) to testify as to it being, in their opinion, in the same handwriting of the defendant made in the proceedings in this cause.
Upon consideration of all the exceptions, we find
No error.