The opinion
NIX, Judge
(dissenting).
The above opinion was rendered by this Court Dec. 18, 1957. A petition for rehearing was lodged within due time by the Attorney General, pointing out that a portion of the record had been misinterpreted by this court and with that your writer agrees. It appeared from the Attorney General’s brief that the state had introduced a photostatic copy of the comparison handwriting letter instead of the original. After a careful study of the record it will be noted that the original was later introduced into evidence as Exhibit 3. The original letter does not appear as an exhibit in the transcript of the proceedings. The Attorney General informed the court that one of the exhibits was a photostatic copy of the original substituted by the court reporter. This was indeed confusing to this court. The court reporter should only make substitutions by order of the trial court. However, it will be noted from the original opinion that one of the grounds for reversal was the fact that the state fell short in proving the comparison instrument to be the genuine handwriting, of the defendant. The only evidence presented in this regard was the testimony of officer who said defendant, when presented a photostatic copy of said writing, acknowledged his signature.
It is well to bear in mind that this was at the time of his arrest, a long while before trial. It was stated in said opinion that this extra-judicial statement by defendant to the officer at the time of his arrest, standing alone is not sufficient. To so hold would in the opinion of the writer open an avenue of fraud in civil action as well as opportunity for unjust conviction in criminal action. The Attorney General has had ample time to overcome the rule laid down in University of Illinois v. Spalding, 71 N.H. 163 , 51 A. 731, 734 , 62 L.R.A. 817, 827 , but as yet no authority to the contrary has been presented. In the above case while discussing handwriting for comparison, the court said:
“the writing must either be of a public nature, such as signature made before a notary or judge, etc., or papers written or signed in some public capacity, or if private papers, they must be admitted, in the case, by the party to whom they are attributed, to be .of his own handwriting. A previous admission of them or previous proof mil not make them admissible.
With proper diligence it should be a simple task to properly identify the comparison writing as that of the defendant by competent testimony.
Your writer is of the opinion the petition for rehearing should be denied.