1 the contents may be proved by the oral testimony of one who has seen it and can describe it, whether by reference to a copy or otherwise.1 Nor is it necessary to have alleged in the indictment that the instrument is lost or cannot be produced in order to warrant the introduction of secondary evidence at the trial, when such fact appears. The original is properly admitted in evidence, however badly written, if it is decipherable; but where it is so faded as to be illegible, a photographic copy is admissible upon proof that it is an exact copy. 3 § 806. Comparison of handwriting. It is not competent to introduce writing supported by evidence that it is the writing of defendant, but not admitted by him to be such, for the purpose of comparison with the signature alleged to be forged." Nor is it proper to allow the prosecuting witness to write his name in the presence of the jury for the purpose of comparison with the signature alleged to be forged. But there is no objection to a witness who attempts to describe the genuine signature of the person whose name is alleged to be forged, making in the presence of the jury the letters of such name for the purpose of illustrating how such party usually makes his signature. An expert may not testify to a comparison previously made between the genuine writing of the person whose signature is claimed to be forged and the signature in question. But an expert may testify as to the condition of an instrument with reference to whether it appears to have been traced or not; and the jury may inspect the document with a magnifyingglass in order to understand its condition. The jury may examine the whole instrument for the purpose of forming their own conclusion as to whether it was produced by one and the same hand," and draw such inference as they may think warranted with reference to the order in which the different sig 1C. v. Snell, 3 Mass. 82; C. v. 2 Mead v. S., 53 N. J. 601. Duffin v. P., 107 Ill. 113. 'S. v. Henderson, 29 W. Va. 147; S. v. Ezekiel, 33 S. C. 115; S. v. Fritz, 23 La. An. 55; Reg. v. Aldridge, 3 F. & F. 781. 6 S. v. Koontz, 31 W. Va. 127; S. v. Lurch, 12 Oreg. 99. 7S. v. Henderson, 29 W. Va. 147. 8 P. v. Mitchell, 92 Cal. 590. 9 Reg. v. Williams, 8 C. & P. 434. 10 Hatch v. S., 6 Tex. Ap. 384. 9 natures were written and other matters. The testimony of witnesses acquainted with the signatures of the president and cashier of a bank from having seen them on notes of such bank in circulation is sufficient to prove the falseness of the signatures on the bill claimed to be counterfeit. These are but illustrations of the application of rules which prevail in civil as well as in criminal evidence, and it is not necessary to go at length into the proof of handwriting by comparison and similar questions. 3807. Capacity of defendant and other matters.— The mere ability to commit the act, as, for instance, skill in imitating peculiarities of signatures, cannot be shown;3 but proof of the manner in which the defendant read the instrument to the witness to whom he offered it is admissible to show the intent; and the fabrication of a deposition to prove the authenticity of an instrument may be shown as constituting an admission of its falsity. Evidence of the pecuniary condition of the defendant at the time a receipt alleged to be forged purports to have been executed to him is admissible, to show that he was not able at that time to pay the sum appearing by the instrument to have been paid. § 808. Evidence of other crimes. It is not a violation of the general rule that on the trial of one offense proof of the commission of other offenses is not admissible, to allow proof, in a prosecution for forgery, of the commission of another forgery at or about the same time, such evidence being admissible to show the intent with which the act charged was committed.' But it would seem that such evidence should be limited to a case where the other transaction was with reference to paper of the identical character of that involved in the act charged, and that it must be shown that the other transaction constituted a crime, and the instrument referred to must be pro 1 C. v. Butterick, 100 Mass. 12. 2S. v. Carr, 5 N. H. 367; at least where the president and cashier are beyond the reach of a subpoena: S. v. McAllister, 24 Me. 139. 3 S. v. Hopkins, 50 Vt. 316. 4 Butler v. S., 22 Ala. 43. 5S. v. Williams, 27 Vt. 724. 6S. v. Henderson, 29 W. Va. 147. 7 C. v. White, 145 Mass. 392, 7 Am. Cr. R. 192, and note; McDonald v. S., 83 Ala. 46; Francis v. S., 7 Tex. Ap. 501; Mason v. S., 31 Tex. Ap. 306. Proof of another forgery committed by defendant at the same time is admissible to identify the guilty party and the transaction: Cross v. P., 47 Ill. 152. duced, or its absence accounted for.1 Especially in cases of uttering forged instruments or passing counterfeit money is evidence of other acts of uttering and passing similar paper or money admissible to show guilty knowledge of the character of the instrument or money. So in a charge for passing or having in possession counterfeit money, evidence of the possession about the same time of other counterfeit money is admissible. It is evident that the other guilty act of possession must be nearly enough connected in point of time with the crime charged to warrant an inference by the jury that the intent in the two cases was the same; but it is said to be impracticable to lay down any general rule as to the necessary proximity in point of time. If the transactions are not in any way connected, the evidence of another criminal act of the same character will not be admissible. 18. v. Saunders, 68 Ia. 370; S. v. Breckenridge, 67 Ia. 204; Rex v. Millard, Russ. & Ry. 245. It must be shown that the other instruments were forgeries: P. v. Altman, 147 N. Y. 473. 2P. v. Kemp, 76 Mich. 410; Foute v. S., 15 Lea, 712; Steele v. P., 45 Ill. 152; Langford v. S., 33 Fla. 233; Bishop v. S., 55 Md. 138; S. v. Cole, 19 Wis. 129; P. v. Stewart, 5 Mich. 243; U. S. v. Doebler, 1 Bald. 519; 8. v. McAllister, 24 Me. 139; P. v. Frank, 28 Cal. 507; S. v. Tindal, 5 Harr. 488; C. v. Bigelow, 8 Met. 235; C. v. Price, 10 Gray, 472; C. v. Hall, 97 Mass. 570; S. v. Van Houton, 3 N. J. 672; S. v. Robinson, 16 N. J. 507; S. v. Houston, 1 Bailey, 300; Finn v. C., 5 Rand. 701; Martin v. C., 2 Leigh, 745; Hendrick v. C., 5 Leigh, 707; Ham v. S., 4 Tex. Ap. 645; Heard v. S., 9 Tex. Ap. 1; Reg. v. Salt, 3 F. & F. 834; Rex v. Ball, Russ. & Ry. 132; Rex v. Wylie, 1 N. R. 92; Reg. v. Green, 3 C. & K. 209; Reg. v. Colclough, L. R. 10 Ir. 241. Evidence of the admission of defendant of the embezzlement of Admissions or confessions other funds in a conversation in which he admitted passing the check in question was held admissible to show his intent in connection with the passing of the check: Strang v. S., 32 Tex. Ap. 219. C. v. Russell, 156 Mass. 196; P. v. Farrell, 30 Cal. 316; Rex v. Hough, Russ. & Ry. 120; Reg. v. Zeigert, 10 Cox, 555. So the possession of instruments for coining may be shown to prove guilty knowledge: S. v. Antonio, 3 Brev. 562. Reg. v. Salt, 3 F. & F. 834. Similar forgeries by defendant nine months after the one in question are not admissible: P. v. Baird, 104 Cal. 462. 5U. S. v. Roudenbush, 1 Bald. 514; Morris v. S., 16 Miss. 762; S. v. Odel, 3 Brev. 552; Rex v. Taverner, Car. C. L. 195; Reg. v. Moore, 1 F. & F. 73; and it is said that if a second uttering is the subject of a distinct indictment, it can be given in evidence to show guilty knowledge in the former uttering: Rex v. Smith, 2 C. & P. 633. as to other criminal acts of the same character cannot be shown.1 § 809. Inferences from the act or possession.— The fact that defendant intentionally derives a benefit from the use of the false instrument is admissible as showing his intent to defraud. So the possession of a forged instrument is evidence that the party having it in possession is guilty of the forgery.3 Such evidence is admissible on much the same principle as evidence of a recent possession of stolen property may be received as indicating guilt of the larceny; and it may be shown in rebuttal that the possession was not exclusive.” § 810. In cases of conspiracy.- Where defendant is shown to have been connected with others in the transaction, evidence of criminal acts on the part of the others is admissible as though they had been done by defendant himself." 1 Fox v. P., 95 Ill. 71; S. v. Odel, 3 Brev. 552; Reg. v. Cooke, 8 C. & P. 586. 2 Anson v. P., 148 Ill. 494; Timmons v. S., 80 Ga. 216; S. v. Patterson, 116 Mo. 505; Berrisford v. S., 66 Ga. 53; S. v. Lane, 80 N. C. 407; C. v. Hide, 94 Ky. 517; U. S. v. Brooks, 3 MacArthur, 315; Rex v. Shepherd, 2 East, P. C. 967; Reg. v. Johnson, 6 Cox, 18. C. v. Talbot, 2 Allen, 161; S. v. Haws, 98 Mo. 188; Hobbs v. S., 75 Ala. 1; S. v. Britt, 3 Dev. 122; Spen 54 cer v. C., 2 Leigh, 751; S. v. Outs, 30 La. An., Part II, 1155; Reg. v. James, 4 Cox, 90. But such possession or the uttering of the instrument does not raise a presumption that defendant forged it, but is simply evidence tending to prove the fact: Miller v. S., 51 Ind. 405. 4 S. v. Allen, 116 Mo. 548. Pagaud v. S., 13 Miss. 491. 6 Martin v. C., 2 Leigh, 745; U. S. v. Craig, 4 Wash. 729; S. v. Morton, 27 Vt. 310; S. v. Thaden, 43 Minn. 253. CHAPTER 32. MALICIOUS MISCHIEF; WILFUL TRESPASS. § 811. Nature of these crimes. While it is said, as will appear in some of the following sections, that the malicious destruction of or injury to property was recognized at common law as a misdemeanor, yet the cases are so entirely based upon statutes that any theoretical discussion of what might be criminal in this direction without a statute would be of no value. Inasmuch as the kind of property the injury of which would be criminal must therefore depend upon statutory description, and no uniform distinction as between what property shall and what shall not be the subject of the offense is maintained among the statutes, it will be useless to try to maintain any such distinction in this discussion. It will be found that injury to animals or personal property in general is frequently by statute included under the head of malicious mischief, although injuries to buildings and to trees are also included in that offense; while by other statutes the term "wilful trespass" or "forcible trespass" is used to include injuries. to real property and to some extent to personal property. Forcible entry and detainer is an offense with reference to real property only, and is susceptible of more accurate definition, but in many states the statutes with reference thereto are not criminal but provide a civil remedy only. § 812. Malicious mischief by early statutes; Black Act.Some early English statutes provide for the punishment of various forms of malicious mischief, conspicuous among them being the so-called Black Act, which provided, among other things, for the punishment of the offense of setting fire to houses, hay, etc., the killing of cattle, the destroying of trees, etc. |