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LUCIOUS McCORMICK v. STATE OF MISSISSIPPI

SEPTEMBER 26, 1984

LUCIOUS McCORMICK
v.
STATE OF MISSISSIPPI



BEFORE WALKER, PRATHER AND SULLIVAN

WALKER, PRESIDING JUSTICE, FOR THE COURT:

Lucious McCormick was convicted of uttering forgery and sentenced to a term of ten years with the Mississippi Department of Corrections. McCormick was tried January 12, 1983 in the Circuit Court of Pearl River County, Mississippi. He appeals from his conviction.

McCormick was accused of having written and cashed a $30.00 check on the bank account of Jerry and Aslean Courtney. McCormick is alleged to have signed Jerry Courtney's name to the check which was dated July 6, 1979.

 McCormick is the nephew of Aslean Courtney and, according to Jerry Courtney, had access to a packet of twenty-five blank checks which were discovered to be missing prior to the check forgery.

 Jerry Courtney testified that he recognized the handwriting on the check as that of McCormick. He based his opinion on handwriting he had seen in letters supposedly written by McCormick to his mother, Courtney's sister-in-law.

 Courtney turned the check and letters over to Ulmer Lumpkin then deputy sheriff with the Pearl River County Sheriff's office. Lumpkin stated that the check and letters were taken to the Mississippi Crime Laboratory for comparison. Lumpkin retired from the sheriff's department April 30, 1980. He testified he did not know where the original documents were.

 Frank Hicks, an examiner of questioned documents with the state crime lab, testified that in his opinion the person who wrote the letters and the person who prepared the face of the original check was the same person. When asked where the documents were now, Hicks said that the originals had been picked up by Larry Davis at 12:35 p.m. on July 28, 1981. Neither Davis nor anyone else was called to testify as to the whereabouts of the original check or letters since July 28, 1981.

 Neither the original of the check nor the letters used as a handwriting sample were presented at the trial. A photocopy of the check was entered into evidence over the objection of McCormick's attorney. The circumstances under which the photocopy was made are not in the record of this case. No copies of the letters were offered into evidence.

 McCormick on appeal assigns the following error:

 THE TRIAL COURT ERRED IN ALLOWING

 TESTIMONY REGARDING THE COMPARISON OF THE

 PURPORTEDLY FORGED CHECK AND ALLEGED KNOWN WRITING PRIOR TO IDENTIFICATION AND ADMISSION OF BOTH DOCUMENTS INTO EVIDENCE.

 The general rule has been stated in 23 C.J.S. 863 Criminal Law, p. 404:

 In testifying as to identity, similarity or difference in respect of handwriting in different documents or signatures, a qualified expert witness may make a comparison of the writings and base his opinion thereon, provided the genuine writing used as a standard of comparison is properly in evidence before the court. . . . It is held that only the testimony of experts will be received as to the genuineness of a writing based on an opinion derived solely from a ...


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