EVIDENCE AS TO HANDWRITING

At one time the only evidence that was allowed to be given as to handwriting was that of the writer himself, or of someone who had seen the writing done, or was well acquainted with the handwriting in question.

Examples of evidence of this kind are numerous and occur in many of the cases mentioned in other parts of this book, such as the trial of Spencer Cowper in 1699, or of that of the Perreaus in 1775.

In the trial of Spencer Cowper (1699) an important part of the defence was that the girl had drowned herself in a fit of depression, and letters written by her were put forward to prove this view.

A gentleman named Marshall produced letters that he had received from her, and a man named Beale gave evidence that he believed it to be in her handwriting, having seen her write and holding a receipt of hers.

The jury declared they were satisfied with the evidence, but the judge (Baron Hatsell) remarked that they might ask the mother to say whether it was her daughter’s handwriting.

Sarah Stout’s brother was also questioned.

Mrs. Stout.—How should I know! I know she was no such person; her hand may be counterfeited.

The Judge.—But if it were written in her more sober style, what would you say then?Mrs. Stout.—I shan’t say it to be her hand unless I saw her write it.

Mr. Stout.—It is like my sister’s hand.

The Judge.—Do you believe it to be her hand?

Mr. Stout.—No, I don’t believe it; because it don’t suit her character.

The judge in his summing up remarked that if the jury believed that the letters were in the handwriting of Sarah Stout there was evidence to show that although she was a virtuous woman a distemper might have turned her brains, and discomposed her mind.

The history of the admission of expert evidence on handwriting in this country is a curious one, and shows that opinion has long been divided as to its value.

In a trial that took place in 1836 a bank inspector was put in the box to give an opinion as to the genuineness of a signature and the judge refused to admit this as evidence. The point was carried to the Court of Appeal, but was still left unsettled, an equal number of judges being for and against the admissibility of such evidence.

Mr. Justice Wills, in his standard work on Circumstantial Evidence, relates that Lord Denman pronounced that evidence as to handwriting might be regarded as an expunged chapter in the book of evidence. In spite of this dictum, however, the evidence of the handwriting expert was made legal in Civil Cases in 1854, and eleven years later it was also legalised in Criminal law.

Long before a witness was permitted in this country to give his opinion upon writing which he had not actually seen written, or with the author of which he was unacquainted, expert evidence of this kind was admitted in the laws of different countries in Europe and in many of the American States.

Handwriting Experts.

A good deal has been heard of late of the shortcomings of the handwriting expert, and owing to a mistaken idea as to the nature of his evidence, the view has been strongly expressed that such evidence should no longer be admissible.

The present feeling against evidence on handwriting is partly due to an exaggerated importance having frequently been attached to the conclusions of the expert, so that as soon as it could be shown that he had made a mistake, no further trust was to be placed in his opinion; and partly to the dogmatic attitude of certain experts in the past.

As Lord Brampton pointed out in his Reminiscences, the judges in mid-Victorian days were afraid to trust their own judgment in matters of handwriting, and powers almost occult were ascribed to the expert, who, after all, only uses ordinary scientific methods.

The true function of the handwriting expert is to act as a sign-post to the jury. His observation has been trained to notice minute points of resemblance and difference, and he is thus in a position to point out in what respect and to what extent two handwritings resemble one another or differ, and it is then for the jury to draw their own conclusions from the facts laid before them.It is now no uncommon occurrence for a judge in summing up a case to the jury to emphasise the point that the evidence of the expert is only a matter of opinion, and that the real decision rests with them. In this way it is possible for the judge to correct the too decided statement of opinion which the expert is sometimes, under stress of cross-examination, forced to give.

Netherclift, who was the chief expert in the days when Lord Brampton was at the bar, had such faith in his methods that finally he came to believe that he could never make a mistake.

This belief received an amusing check in a case in which he was under cross-examination by Lord Brampton (then Mr. Hawkins).

Netherclift had claimed that his system gave infallible results, and had further stated that his son, whom he had trained, made use of the same system.

“Then,” said the wily advocate, “your son working on your system is as good as you are?”

“Yes,” replied the father with some pride in his voice, “he is.”

“That is to say, he, too, is infallible?”

“Yes,” again replied the witness.

“Well, now, Mr. Netherclift, was there ever a case in which you and your son appeared on opposite sides?”

Netherclift tried to evade the question, which, he complained, was an unfair one, but on being pressed was forced to admit that on a certain occasion he had given evidence on one side and his son upon the other.Swift came the unanswerable retort, “How comes it then that two infallibles appeared on opposite sides?”

Netherclift’s dogmatic manner rendered him peculiarly liable to fall into traps like this, and many were the occasions on which he was found tripping.

Readers of Lord Brampton’s book will recall another amusing instance in which the expert was “put in a hole” by his opponent, who tells the story in these words: “When I rose to examine I handed to the expert six slips of paper, each of which was written in a different kind of handwriting.

“Netherclift took out his large pair of spectacles, magnifiers, which he always carried. Then he began to polish them with a great deal of care, saying as he performed that operation, ‘I see, Mr. Hawkins, what you are going to try to do—you want to put me in a hole.’ ‘I do, Mr. Netherclift, and if you are ready for the hole, tell me—were those six pieces of paper written by one hand about the same time?’

“He examined them carefully, and after a considerable time, answered: ‘No; they were written at different times, and by different hands.’

“‘By different persons, do you say?’”

“‘Yes, certainly.’”

“‘Now, Mr. Netherclift, you are in the hole! I wrote them myself this morning at this desk.’”

The feeling of distrust with which the evidence of the expert in handwriting is often regarded by the legal profession is illustrated by a capital story that was told recently by Sir Edward Carson in a letter to the Times. An Irish counsel in a now forgotten case began his cross-examination of a handwriting expert with the curious question—“Where’s the dog?”

“What dog?” said the bewildered witness.

“The dog which the judge at the last assizes said he would not hang upon your evidence.”

How closely two distinct handwritings may resemble one another was shown in a celebrated case in which handwriting experts were proved to be utterly mistaken. This was the trial of Sir Francis Truscott, a former Lord Mayor of London, at the Old Bailey in 1879.

It was asserted that the defendant had sent a post card to a friend named John Kearns, who had at one time served with him upon the City Council, accusing him of a criminal offence and warning him that he was being watched by the police.

At the trial evidence was given in the most positive manner by a lady who was acquainted with Sir Francis Truscott to the effect that the moment she had been shown the card she had recognised the writing as his.

This opinion was supported by Charles Chabot, an expert in handwriting, who stated in the witness-box that he was certain that the writing on the post card had been done by the same individual who had written certain letters of the defendant which he had examined. The similarities between the two writings were, he asserted, too close not to have been the work of one individual.

Evidence of the same character was then given by Netherclift, who swore that from a minute comparison of the libellous post card with letters in the admitted writing of the accused there could be no doubt but that they were written by the same person.

The defence was opened by a witness named Smith being put in the box. He stated that he knew both Mr. Kearns and Sir Francis Truscott, and was aware that the friendship between them had ceased. He was then shown the post card and asked whose was the handwriting upon it.

“I wrote the post card,” he said. “It is my own writing.”

Answering further questions, this witness stated that he had been abroad when the charge was brought against Sir Francis Truscott, and that as soon as he learned what had happened he had made an affidavit that the writing was his.

The father of this witness produced post cards written by his son and stated that the libellous post card was in the handwriting of his son and not in that of Sir Francis. Evidence was also given by another witness who knew both Sir Francis and Mr. Smith, and who had no doubt but that the post card was in the handwriting of the latter.

At this stage the jury intimated that they had heard sufficient, and brought in a verdict of “Not guilty.”

Mr. Justice Wills records a case in which a bank clerk being shown a forged signature swore positively that he had written it, while he was doubtful as to the authenticity of signatures that were undoubtedly his.

Another instance of the way in which writing may be so skilfully imitated as to deceive even the man whose writing it purports to be is afforded by the trial of a solicitor named Shaw at the Derby Assizes in 1861.He was accused of having forged a mortgage, and at the trial a client of his named Abel went into the witness-box and in all good faith swore that his genuine signature upon a document was not his, while he recognised the forged signature as his genuine writing.

It was proved conclusively, however, at a subsequent action that was brought three years later, in connection with the forged deed, that Abel’s signature upon it had been forged, and the convicted solicitor was brought into court to give evidence that he had himself signed the document.

Another curious example, also cited by Wills, of the uncertainty of evidence as to writing was that of a trial in which a deed that was produced bore the signature of Lord Eldon. The solicitor in the case had no doubt as to this being a genuine document, and yet it was positively stated by Lord Eldon that he had never witnessed any document in his life.

The cases of wrong conclusions as to handwriting have been as numerous as those of mistaken identity of person, and have had as tragic consequences.

The notorious case of Beck will occur to everyone as an instance of a man being not only wrongly identified, but of being also the unfortunate possessor of a handwriting that had a close resemblance to the writing of someone else.

The two false identifications combined were sufficient to send an innocent man to prison, and it was long before it was established that the witnesses upon whose evidence he had been convicted had been utterly mistaken both with regard to his identity and his handwriting.