The opinion
ROSSMAN, J.,
dissenting.
In dissenting, I, of course, concur in the part of the majority opinion which holds that substantial error was committed when, over the defendant’s objections, the three handwriting experts were permitted to testify. That error, in my opinion, demands reversal. The error was greater than the majority acknowledge. It was amplified when the nine checks, which the experts used for comparative purposes, were received in evidence. When they were offered, the defendant made valid objections which should have been sustained. The checks were sent with the jury to the juryroom when they deliberated upon the verdict, and very likely were used by them. A handwriting expert is, in truth, an expert witness. Witnesses of that kind take pains to develop skill in making themselves effective and persuasive upon the witness stand. Their testimony cannot lightly be dismissed as nonprejudicial. They intend it to be a decisive factor in the case. Those words are not intended as a reproach for handwriting experts, but are expressed for the purpose of emphasizing that the error, which the majority acknowledge occurred, demands reversal.
The nature of the majority opinion may cause those who are unfamiliar with the facts of this case to infer that the transaction which occurred June 8, 1951, when the water district resolved that a check for $750 should be drawn in the defendant’s favor, of necessity created a trust relationship and that the money became a trust fund. The relationship which was then established is the heart of this case. The defendant does not admit that upon his receipt of it the money became a trust *584 fund. When he pleaded not guilty he put in issue the charge that he received the fund as a trust res. Whether a trust relationship was established on that day or whether the relationship was that of debtor-creditor is a vital issue in this case. It is the jugular vein of the case. I believe that the relationship was one of debtor-creditor. As I shall presently show, the instructions virtually told the jury that when the defendant took the money he became a trustee of it. The jury was not told to determine the province in which he received the money, and it is crystal clear that it was given no criteria or test whereby it could ascertain whether he received the money as trustee or as debtor. Had such an instruction been given, it is at least questionable whether the defendant would have been found guilty.
June 8, 1951, the board of commissioners of the Taft-Nelscott-Delake water district met. The defendant was a commissioner and secretary of the board. He received no compensation for his services as commissioner or as secretary. During the course of the meeting, mention was made of the district’s need of pipe. The defendant was an honorably discharged veteran of World War II, who held the rank of colonel at the time of his discharge. While serving overseas with the air corps he sustained a serious injury and upon his discharge was classified as a disabled veteran. During the discussion of the district’s need for pipe, the defendant recalled that he had read an article in an engineering magazine which stated that the government possessed surplus pipe and that one of its agencies would offer to disabled veterans priorities in its purchase. The defendant gave to his fellow commissioners the information which he had gained from the magazine and thereupon a wish was expressed that he obtain some of the pipe. Presently a resolution was *585 adopted which contemplated a purchase by him. It read as follows:
“By unanimous consent the sum of $750.00 was authorized to be transferred to the personal account of the Secretary for the purchase of material and equipment * #
The word “Secretary” standing by itself might signify that the defendant was required to put the money into an official account, but any surmise to that effect is negatived by the purpose of the resolution and the following words “to the personal account.” The clerk of the board, as a witness for the state, testified:
“* * * and the water board at that time transferred to his personal account the sum of $750.00 for that purpose.”
The money was paid to the defendant through a cheek of the water district in the sum of $750. The check is an exhibit in this case. It named as its payee the defendant Cahill. No word, such as ‘ ‘ secretary, ” “ commissioner,” “trustee,” or “agent,” indicating payment in a restricted capacity, was inserted in the check after the defendant’s name. The day after he received the check, the defendant deposited it in the joint bank account of himself and his wife. At the end of the month the cancelled check was returned by the bank to the water district with a perforation which read: “Paid 6-12-51.” Accordingly, at the end of the month, when the district received from the bank its cancelled checks and also the customary statement listing deposits and withdrawals, it noticed that the $750 had been paid to the defendant.
We now return to the meeting of June 8, 1951. The defendant, as I have said, received no remuneration for his services as a commissioner and secretary of the *586 board. When, during the course of the meeting, mention was made that the district needed pipe, the defendant had a two-fold interest in the subject. Others who have served upon boards alike to the one which met on June 8, 1951, have found themselves in a situation similar to the one with which the defendant dealt; that is, as a member of the board, the individual can do nothing more concerning some matter upon which action is desired than any other member of the board, but, as a veteran, or as a member of the board of directors of a bank or in some other capacity, he can procure the desired result. In the present instance, the defendant, upon discovering that the district needed pipe, stated that if the announcement which he had read was correct he believed that he could, as a disabled veteran, get some pipe. The members of the board surely realized that, as a commissioner, the defendant could do nothing which each of them and the board’s purchasing agent (the superintendent) could not do as well, but, as a disabled veteran, he had superior access to the pipe. Therefore, when his fellow commissioners requested him to buy some of the government’s pipe, they did not want him to make the purchase as a water commissioner nor in the board’s name, but in his own name and in his capacity as a disabled veteran. Of course, they expected him,' after receiving the pipe, to transfer it to the water district without profit to himself. Thus, it is manifest that the money was given to the defendant, not as a commissioner nor as secretary of the board, but in his individual capacity. By reverting to the resolution which was adopted that evening, it will be seen that it directs that the money should be transferred to the defendant’s “personal account.” "We note from the foregoing that the board had a definite purpose in inserting the words “per *587 sonal account” in the resolution. They were important to the board’s plan. It wanted the defendant to deal with the money and with the pipe in his personal capacity. To fail now to give those words effect is tantamount to changing the nature of the transaction ex post facto.
The nature of the transaction which occurred in the board meeting of June, 1951, was by no means strange. The record indicates that when the resolution was passed, the defendant was popular and well liked throughout the area. He had the confidence of his fellow commissioners. While with the armed forces he was engaged in some phase of engineering and upon returning after his discharge he placed his engineering experience to the avail of one of the local municipalities, thereby adding to his prestige. Thus, when the money was handed to him it was given to an individual who was well regarded. A year or more later he became involved in some controversial activities which cost him some of his friends, and to those activities he attributes his troubles. I am not concerned with those involvements and have mentioned the good will which was manifested for him at the time of the transaction only for the purpose of indicating that the board’s action was reasonable.
As a disabled veteran, the defendant was not an agent or fiduciary of the water district. By including in the resolution the words “personal account” the board negatived any imputation that it had in mind a trust relationship or that the money was to become a trust res. The board looked forward to the day when the defendant would convey to it pipe of the value of at least $750, and, in order to enable him to get the pipe, made an advance payment to him of $750. Since the money was paid to him in his individual capacity, it *588 was not given to him as a trust fund. The payment to him of the $750 created a debtor-creditor relationship, not a trustee-beneficiary relationship. It is fair to believe that the board thought that the defendant could be trusted to convey to the water district pipe of the value of $750, or, in the absence of ability upon his part to do so, to repay the money.
Section 12, Eestatement of the Law, Trusts, says:
“A debt is not a trust.”
Subdivision g declares:
“If one person pays money to another, it depends upon the manifested intention of the parties whether a trust or a debt is created. If the intention is that the money shall be kept or used as a separate fund for the benefit of the payor or a third person, a trust is created. If the intention is that the person receiving the money shall have the unrestricted use thereof, being liable to pay a similar amount whether with or without interest to the payor or to a third person, a debt is created.”
From Bogert on Trusts, § 15, the following is taken:
“An agent may acquire property by the expenditure of his own money under a contract with the principal, made as a part of the agency arrangement, that the agent will deal with the property as the principal may direct. Or the principal may transfer property interests directly to the agent under a similar contractual understanding. In both cases the agent has ‘title,’ that is, a broad general property interest, and he holds it subject to contractual duties in favor of his principal, enforceable in a court of law. No express trust is intended and no reason is seen why any implied trust should be presumed to arise. It is believed that such cases of agents holding general property, in specific things, subject to merely contractual duties toward their principals, are not uncommon.
*589 “Frequently the agent has delivered to him money or other personalty which is to become his absolute property, in consideration of which he agrees to pay out money from his own funds later on behalf of the principal. There can be no tendency to treat an agent who receives such personalty as a trustee. He takes complete title subject merely to a contractual duty.”
I am satisfied that the money was paid to the defendant in his individual capacity and that no relationship resulted from the transaction except one of debtor-creditor.
Still further indicative of a debtor-creditor relationship, and not one of trustee-beneficiary, is the fact that the defendant had no authority whatever to purchase any pipe for the district even after the resolution of June 8,1951, was adopted. That resolution read:
“By unanimous consent the amount of $750.00 was authorized to be transferred to the personal account of the Secretary for the purchase of material and equipment in the event inspection of such items determines that the district will benefit from such purchase.”
Mr. F. H. Baxter had been a member of the water board since 1951 and in 1953 became its chairman. He testified:
“Q In the last analysis, Mr. Baxter, the superintendent and the clerk would do all the purchasing?
“A I don’t get you.
“Q I say, in the last analysis, the superintendent of the board and the clerk of the board would do the purchasing for the board—isn’t that correct?
“A They are authorized to make purchases. That is, small purchases. Any large purchase, of course, would come before the board.
*590 “Q The entire board? But it would have to be inspected by the superintendent, wouldn’t it, before —
“A He inspects the material that comes to the board, yes, sir.”
It is seen from the resolution that it conferred upon the defendant no power to purchase any pipe on behalf of the district. And the testimony of Mr. Baxter, who was a witness for the state, renders it clear that none of the commissioners possessed power to purchase anything for the district. Had the defendant purchased any pipe, he would have done so as an individual. If he purchased pipe which the district’s officials, upon inspection, accepted, he would, of course, have conveyed the pipe to the district and thereupon the $750 debt would have been discharged. But if he had made a purchase which the district refused to accept he would have been powerless to have forced the acceptance of the pipe. The reason for his plight would have resulted from the fact that the district had not conferred power upon him to purchase anything. Without carrying the analysis further, it sufficies to state that, normally, a trustee is not subject to such limitations. The essence of the matter is, as already indicated, that the pipe transaction contemplated that the defendant, as a disabled veteran, would seek to find material which the superintendent of the water district approved as suitable for the district’s needs. Thereupon the defendant, after gaining the needed approval, would make the purchase in his own name, and upon receiving the pipe would deliver it to the district.
Still another circumstance which indicates that the defendant was not a trustee is the fact that the state claims that the water district made a peremptory de *591 mand for the return of the purported trust res and in that way terminated the relationship. Trust relationships cannot be ended in that manner. Bestatement of the Law, Trusts, § 330, reads:
“(1) The settlor has power to revoke the trust if and to the extent that by the terms of the trust he reserved such a power.
“(2) Except as stated in §§332 and 333, the settlor cannot revoke the trust if by the terms of the trust he did not reserve a power of revocation. ’ ’
The manner in which it is claimed that the relationship was brought to a close proves that no trust relationship existed between the parties. The relationship was that of debtor and creditor.
Now let us see how the instructions which were given to the jury dealt with the subject just reviewed. It must be apparent that whether the defendant became a trustee when he received the $750 or became a debtor is of paramount importance. Unless he was a trustee, the charge must fail. If that issue was never submitted to the jury, then, clearly, the defendant has never had a trial by jury upon it. His plea of not guilty demanded that the issue should be submitted to the jury. The instructions to the jury said nothing whatever about a debtor-creditor relationship. The words “debtor” and “creditor” are wholly absent from the instructions. Not even an intimation was made to the jury that it was possible, when the defendant received the $750, he became a debtor. Unless the jurors were wiser than the instructions, they did not know that they could find that his receipt of that money made him a debtor. Not a hint was given to them as to how they could distinguish the one relationship from the other. No rule, formula or yardstick was mentioned whereby the jury could determine whether the payment to the *592 defendant created a trust, debt or something else. Of course, the instructions told the jury that if under the evidence “you believe beyond a reasonable doubt that the defendant is guilty, it is your duty under your oath to bring in a verdict of guilty. ’ ’ Obviously, a jury needs more help than is afforded by the words just quoted. In determining whether or not the defendant, upon receiving the money, became a trustee or a debtor, the jury surely needed the help of a definition or criterion. The majority, in analyzing the situation, have resorted to the law books and it, therefore, is sensible to infer that the jury was not better informed than the man on the bench. Possibly it will be said that the following instruction filled the need:
“If you find from the evidence beyond a reasonable doubt that the defendant in Lincoln County, Oregon, at the time alleged in the indictment did have in his possession and under his control a certain sum of money belonging to the Taft-Nelscott-Delake Water District * * * that the defendant did convert to his own use the sum * *
But that instruction, like the others, failed to give the jury any rule whereby it could determine whether or not the $750 belonged to the water district after it w;as paid to the defendant, or whether the defendant became owner of the money subject to a debtor-creditor relationship.
The instructions told the jury:
“The defendant Otto W. Cahill has admitted that he received $750.00 money of the Taft-Nelseott-Delake Water District.
“The law of Oregon provides that a public official is required by law to pay over to a municipal corporation money belonging to the municipal corporation which is in the possession of such public *593 official at the termination of his official capacity as snch public official.”
The defendant at no time “admitted that he received $750.00 money of the Taft-Nelscott-Delake Water District.” I repeat, he never made such an admission. Toward the close of the trial, his attorney, addressing the trial judge, declared:
“If Your Honor please, I think—it will shorten the matter, and it is not very material anyhow— I think, I think the testimony on that deposit—the questions of whether or not that $750.00 check was deposited for a time, the testimony of the defendant was in error.”
Later he added: “We will admit that the money was deposited.” Certainly those words were not an admission that the $750 ever became a trust fund or that the defendant possessed “$750 money of the Taft-Nelscott-Delake Water District.” I return to the words of the quoted instruction which said: “The defendant Otto W. Cahill has admitted that he received $750.00 money of the Taft-Nelscott-Delake Water District.” The preposition “of”, according to Webster’s New International Dictionary, 2d edition, has the following meaning: “* * * belongingto; * # Bouvier’s Law Dictionary, 3rd revision, defines it as “belonging to.” In People v. Wolf, 334 Ill 218, 165 NE 619 , the indictment charged that the defendant “unlawfully, feloniously, wilfully and maliciously did set fire to and burn a certain barn of one Everett Steele.” A stateute provided that in an indictment for arson “if the building was occupied, it shall be sufficient to allege the building to be the property of the owner, lessee or occupant thereof; * *' The defendant argued that the indictment was defective inasmuch as it did *594 not allege, according to him, that the barn was the property of Steele. In overruling the contention, the court said:
“One meaning of the word ‘of’, given in Webster’s New International Dictionary, is ‘belonging to’. The plain meaning of the words ‘a barn of one Everett Steele’, is that it is a barn belonging to or the property of Everett Steele. Thjs is the view that has been adopted in other jurisdictions where the question has arisen.”
Davis v. The State, 38 Ohio St 505, was based upon an indictment for burglary in which it was charged that the defendant feloniously broke into “a certain dwelling house, to-wit, the infirmary of Morgan County * * defendant claimed that the indictment did not charge ownership in Morgan county. The court ruled:
“To this we cannot agree. Taking the language in its ordinary meaning, the word ‘of’, in this connection, is equivalent to ‘the property of’ or ‘belonging to’.”
The use of the preposition “of” in the instruction given in the case at bar was deliberate and not a slip of the tongue. The state requested the very instruction which I quoted, and it was given in the precise words of the state’s request.
The meaning of the instruction given by the trial judge is manifest. Since it coupled the words “admitted he received $750.00 money of the * * * Water District” with the charge that it is the duty of a public official to pay back “money belonging to the municipal corporation which is in his possession * * * at the termination of his official capacity as such public official”, the jury were clearly given to understand that the money belonged to the water district. That is *595 especially true inasmuch as the instructions did not tell the jury to determine whether or not the money was a trust fund, and gave the jury no criteria whatever whereby it could have resolved that issue had it been assigned to that body. Since the defendant did not claim that he paid the money to the water district upon the termination of his term as a commissioner, the instruction was tantamount to a directed verdict in favor of the state.
This dissent should not be concluded without mentioning that much is contained in the majority opinion which can create the erroneous impression that the defendant, by his conduct, virtually conceded that he received the money as a trust fund. A reading of the evidence will dispel any impression of that kind. When the defendant testified that he kept the money together after receiving it he did not thereby indicate that it constituted a trust fund. He was endeavoring to explain that he constantly was able to pay back the money in the event that he was unable to acquire pipe. His defense was repayment and, since the state had introduced in evidence the bank ledger sheets showing that the defendant’s account rarely held $750, the defendant tried to show that he constantly had $750 cash on hand. As a witness, he testified more than once that when he received the money he was authorized to put it in his bank account if he so wished; he added, “I testified before the grand jury, in accordance with the minutes of the meeting, I was authorized to put it in my own account.” When his testimony is fairly construed, no admission can be found in it that the defendant admitted that he received the money as a trust fund.
Without proceeding further with this phase of the case, I express my belief that the defendant did not *596 receive the $750 as a trust fund. In any event, the issue pertaining thereto should have been submitted to the jury. Error was committed when the trial judge gave the jury the instruction which I quoted and when he failed to give the jury any instructions whatever as to how they could determine whether the money was given to the defendant in a trust capacity or in a debtor-creditor relationship.
I now turn to another error which I believe the majority make. The defendant, as we have seen, denied that he received the $750 as a trust fund. He went on and swore that on January 21, 1954, he paid back the money. In substantiation of that defense, he produced a paper entitled “Receipt” and testified that the signature to it was that of John D. Naylor, treasurer of the water district. The paper acknowledged receipt from the defendant of the sum of $750 on January 21, 1954. If the signature was Mr. Naylor’s, then the defendant’s testimony that he repaid the money was corroborated. If repayment was made January 21, 1954, it was made well in advance of the day when the water district instituted the civil proceeding against the defendant, upon which the state relied to prove demand for repayment. The statute upon which this case is predicated (OCLA 23-525 as amended by Oregon Laws 1941, ch 371 [in present form ORS 165.015]) is quoted in part in the majority opinion, but the quotation omits the words of the statute which, I believe, governed the trial. The material words are:
“If any person shall receive any money whatever for this state, * * * or other municipality or public corporation * * * or shall neglect or refuse to pay over any portion thereof * * * when lawfully demanded so to do, such person shall be deemed guilty of larceny * *
*597 The majority opinion omits from its quotation the words “when lawfully demanded so to do.” Those words, in my opinion, were deemed the essence of the purported crime in the trial court.
The indictment charged that the crime was committed February 1, 1954. It also specified the time when the alleged offense was committed by using these words: “wilfully and feloniously fail and refuse to pay over said sum of money then lawfully demanded so to do by said Taft-Nelseott-Delake Water District.” Thus the indictment identified in a two-fold manner the time of the alleged offense. One of the specifications was the day given in the indictment, that is, February 1, 1954. The other was the day when the defendant failed, upon demand, to pay back. The demand, so the indictment said, was made February 1, 1954. The state claims that on February 1, 1954, a verbal demand was made upon the defendant and that shortly afterward the water district filed against the defendant a civil proceeding for the $750, but now it develops, if the majority is right, that the crime did not occur on February 1, 1954, but two years and seven months prior thereto. And it did not consist of the alleged failure of the defendant to have repaid upon demand, but in his action in permitting his bank account to drop below $750. It can be demonstrated by resort to the words of the district attorney who prosecuted this case that the state contended during the trial that the crime was committed February 1, 1954, and not on July 3, 1951, when the defendant’s bank account declined to a balance of less than $750. One of the state’s requested instructions, as prepared by the district attorney, declared:
“Ladies and Gentlemen of the Jury, If you find from the evidence beyond a reasonable doubt that *598 the defendant in the County of Lincoln and State of Oregon at the time alleged in the indictment did have in his possession and under his control a certain sum of money belonging to the Taft-Nelscott-Delake Water District, and that the Taft-Nelscott-Delake Water Distict is a municipal corporation of Oregon, and that the defendant did convert to his own use the sum of $750.00 * *
I direct attention to the words “at the time alleged in the indictment.” The words of the requested instruction went on to say that if the defendant committed the act by converting the money and “by failing or refusing to pay over the money when lawfully demanded so to do, you should return a verdict of guilty.” Upon no occasion did the state claim that the crime was committed at any other time. It asked for no instruction that the time stated in the indictment was immaterial. In presenting its case to this court, the state has not asked to be relieved from the time indicated in the indictment. The requested instruction was given verbatim to the jury.
The indictment can be fairly construed to mean that the alleged conversion of the water district funds was committed by the defendant when, after the district’s demand for repayment, he failed to repay the money. I believe that the state’s requested instruction, from which I quoted in the above paragraph, was framed upon that understanding of the charge. ORS 132.560 represents the enactment in this state of the results of more than four centuries of enlightened effort. It states:
“The indictment must charge but one crime,, and in one form only, except that: * *
The exceptions are not material in this ease. ORS' *599 132.530 is supplementary to the provisions just quoted. It reads:
“The indictment must be direct and certain as to the party charged, the crime charged, and the particular circumstances of the crime charged when such circumstances are necessary to constitute a complete crime.”
But, notwithstanding those wholesome provisions of our laws and the fact that the district attorney requested the trial judge to charge that if that body found that the defendant “at the time alleged in the indictment” converted to his own use money of the water district, the majority find that the indictment in its single count charges many crimes. Thus they say:
“* * " The indictment charged that defendant converted the fund to his own use and did also charge that he failed and refused to pay over the fund. * * * It f ollows that conviction would have been proper on the undisputed evidence reviewed above, showing, (1) deposit of the fund and its conversion piecemeal after July 3, 1951 the last day on which the fund remained intact in the bank account, and (2) proof that the fund was never withdrawn as such but was used up by the personal withdrawals from the account.”
In construing the indictment in that manner, the prevailing opinion says that no motion was made in the trial court to require the state to elect whether it would stand on the conversion feature or on the failure to return the fund upon demand. The answer seems obvious. Plainly, no motion of that kind was made because the district attorney afforded the defendant no occasion to make such a motion. He elected to stand upon “the time alleged in the indictment.” See State v. Lee, 202 Or 592 , 276 P2d 946 .
*600 By treating (a) the time of the alleged offense as February 1, 1954 and not July 3, 1951, and (b) the nature of the charge as neglect to maintain a bank balance of $750 and not failure to pay upon demand, the majority alter the charge upon which the defendant was prosecuted in such a way that they hold that his entire defense was immaterial. They say that repayment is no defense to a charge of embezzlement and that, therefore, the errors which were committed at the cost of the defendant in connection with his defense of repayment did not prejudice him. In fact, without expressly so saying, they find that he had no valid defense whatever. He and his witnesses might as well have stayed at home. According to the majority, the defendant became guilty the moment his bank account retreated below $750. When that happened he had no defense. If that was Ms crime, it is remarkable that the state waited for two years and seven months before seeking his indictment. If the charge against him was predicated upon the condition of his bank balance on July 3, 1951, is it not extraordinary that the district attorney and the trial judge were unaware of that fact? If the guilt was established the moment the bank clerk produced the defendant’s ledger sheet, the prosecution could have rested and objections would have been sustained to all of the evidence which the defendant thereafter presented. It is plain that no one who participated in the trial entertained the conception of the charge against the defendant upon which this court finds him guilty.
I am satisfied that the time of the alleged offense, both as stated in the indictment and as developed at the trial was February 1, 1954, and that the defendant is wronged by the treatment accorded the charge in the prevailing opinion.
*601 If the prevailing opinion is justified in treating the case in the manner described above, it would have no occasion to resort to Art. VII, § 3, Constitution of Oregon, but it reaches out and embraces that provision. In so doing it deems inconsequential the errors which were committed (1) when, over the defendant’s objections, the testimony of the three experts was received; (2) when, over the defendant’s objections, the nine checks were received in evidence. Further, in affirming the conviction, it brushes aside as unimportant all of the following testimony which the defendant produced in his favor: (1) The defendant swore that on January 21, 1954, a few days prior to the death of John D. Naylor, treasurer of the water district, he handed to him in the Naylor home the sum of $750 and thereby discharged the obligation. (2) The defendant swore that he saw Mr. Naylor sign the challenged receipt and that the signature which the experts branded as a forgery was Mr. Naylor’s genuine signature. (3) The defendant’s wife swore that she accompanied the defendant in his automobile when on January 21, 1954, he drove to Mr. Naylor’s house and that she noticed when he left the automobile to ascend the steps leading to the house he carried an envelope containing currency. She also swore that when he later returned to the car he no longer had the envelope but displayed a receipt which he placed in the glove compartment of the car. (4) Mrs. John D. Naylor, as a witness for the state, testified that in January, a few days prior to her husband’s death, the defendant visited him in their home. (5) W. B. Borton, who had known Mr. Naylor “for a great number of years—-I would say since 1933” and had had business transactions with him which brought to him checks signed by Mr. Naylor, swore that the signature upon the challenged receipt *602 was Mr. Naylor’s. (6) L. E. Flutz, who (a) had known Mr. Naylor for many years, (h) had served with him monthly for three years on the board of trustees of a church, and (c) had seen Mr. Naylor many times sign his signature, swore that when he was shown the questioned document, “I am positive it was Mr. Naylor’s signature. ’ ’
If the defendant made repayment January 21,1954, he did so before the purported demand was made upon him and therefore the charge contained in the indictment can not be sustained. I add that it is very doubtful whether any demand was ever made upon him for repayment. It is true that February 1,1954, the chairman of the water district telephoned to the defendant, but the call was not a demand for repayment but for the files of correspondence concerning the $750. A few days after February 1,1954, the attorney for the water district instituted a civil proceeding against the defendant, and it is claimed that that proceeding was the demand. The trial judge charged the jury:
“You are instructed that the commencement of a civil action for the recovery of money is a lawful demand on the defendant to pay over money, if he has, to the plaintiff.”
The pleadings in the civil action were not introduced in evidence, but the attorney for the water board who prepared the complaint, as a witness for the state, described the nature of the case in these words:
“The action I brought, Mr. Hoy, was one for an accounting.”
A suit for an accounting, obviously, is not a demand for the payment of money.
From the considerations above mentioned, it is seen that if this court is bound by the charge stated in the indictment and as construed by the district attorney, *603 the defendant presented a defense which this court is not at liberty to disregard. Nothing contained in Art. YU, § 3, Constitution of Oregon, justifies the course which the majority are taking.
For the apparent purpose of supporting their opinion, the majority say that the testimony which was given by Mr. Stanley MacDonald, one of the three handwriting experts who testified, indicates that the signature upon the receipt was a tracing. According to Mr. MacDonald, the questioned signature presented no indication of having been written by “a flying pen.” He called the jury’s attention to the lack of “a sharply pointed or tapered beginning stroke” and commented upon the absence of “a sharply pointed final stroke.” Accordingly to his testimony, “the pressure is constant throughout the entire signature and at the endings or terminals the ends are all blunt, which indicates that the pen in starting the signature rested on the paper before it started to move * * *. Now that leaves a line of the same width throughout the questioned signature.”
The defendant swore that Mr. Naylor wrote the questioned signature with a bail-point pen. A ballpoint pen would produce exactly the result described by Mr. MacDonald. At the point where it begins to impart ink to the paper a small blurb appears, thus accounting for a blunt beginning. If there is any doubt upon that subject, “Aspects of Forensic Science, The Bail-Point Pen” by Wilson R. Harrison, 1955 Criminal Law Review 544, will dispel the doubt. Although the defendant swore that. Mr. Naylor used a bail-point pen, the district attorney asked Mr. MacDonald nothing concerning the characteristics of the writing which a pen of that kind produces. The undisputed evidence shows that on January 21, 1954, when he is said to have *604 signed the questioned receipt, Mr. Naylor was a very sick man. He died a few days later.
As the prevailing opinion points out, the three experts were permitted to compare the signature upon the receipt with ten other purported signatures of Mr. Naylor. Nine of those signatures, as the majority hold, would have been ruled admissible had ORS 42.070 been given effect. I agree with the majority that error was committed when the objections which the defendant made to the testimony of the experts were overruled. But the majority assume that the three experts would have given identically the same answers had they been permitted to see only the one signature of Naylor which the defendant conceded was genuine. I do not concur in that assumption. Albert S. Osborn, who is commonly regarded as the preeminent authority on questioned documents, states in his volume “The Problem of Proof”, page 42:
“The standards of comparison first provided in many disputed document cases are too few in number and not suitable in kind, and the finding of the suitable and adequate standards of comparison is one of the first steps to be taken in the preparation of a case of this kind.”
The same volume, at page 52, adds:
“What is especially desirable is that a sufficient quantity of writing and of succession of specimens of the same matter be secured as a means of testing disguise. ’ ’
In his other treatise, “Questioned Documents”, 2d edition, at page 27, Mr. Osborn says:
“Several signatures should always be obtained, if possible, before any final decision is rendered, five signatures always constituting a more satisfactory basis for an opinion than one and ten being better than five.”
*605 Wigmore on Evidence, §709, says:
“(b) There is, however, another consideration, also based on the present principle, i. e., that of the adequacy of the witness’ sources of knowledge. The witness to the type of handwriting must have formed in his mind a standard based on the observation of specimens; and the inquiry must naturally be made (ante §§ 694-698) whether the specimens he has seen have been sufficient in number, in quality * * *. Now the same questions must come for settlement in dealing with the kind of witness, the expert. His sources of belief may be objected to (1) because the specimens laid before him are not sufficient in number, or (a) because they have been selected unfairly, for the purpose of aiding a peculiar view.”
The reason why the expert should have at his disposal a number of genuine signatures when he makes his comparison and gives his opinion is because people rarely write their signatures exactly the same. A large number of genuine specimens is essential to acquaint the witness with the person’s characteristic writing. Not only should the expert have many samples, but it is desirable that the signatures, admittedly genuine, should have been written upon paper and under circumstances substantially the same as the contested signature. It is altogether possible that if the expert witnesses had been shown only the single signature which was admissible in evidence they would have declared that it afforded an insufficient basis for saying whether the questioned signature was genuine or not.
There are other reasons which could be developed in this opinion, but I shall not go on. The above suffices. I am convinced that the majority opinion is unwarranted. The challenged judgment should be reversed.