The opinion of the court was delivered by: MODARELLI
Attention will be directed to the contentions asserted by defendant regarding the authenticity of the signatures of the home owners, Mr. and Mrs. William G. Harris, on the F.H.A. Completion Certificate.
It should be noted at the outset that for this element of defendant's motion reliance is placed upon an affidavit of J. Howard Haring, who claims expertise in the field of handwriting analysis. The analysis of signatures made pursuant to an examination granted by this court June 7, 1956, is reported in an affidavit signed by Mr. Haring. His opinions may be summarized as follows:
1. Mr. Haring was 'unquestionably inclined to the opinion that the pen and ink used to sign the names 'William G. Harris' and 'Ruth E. Harris' * * * was the same pen and ink used to write all the other writings admittedly written by J. J. Ginter * * *.'
2. Further, he was 'unquestionably inclined to the opinion that the questioned signatures 'William G. Harris' and 'Ruth E. Harris' * * * were written by the same individual who wrote all the writings admittedly inscribed * * * by J. J. Ginter * * *.'
3. Lastly, he was 'unquestionably inclined to the opinion that the questioned signatures, 'William G. Harris' and 'Ruth E. Harris' were not written by the defendant, Saul A. Keller.'
Movant asserts that the impact of Mr. Haring's opinion just summarized, amounts to newly-discovered evidence. Movant cites two rules, that are announced in Larrison v. United States, 7 Cir., 1928, 24 F.2d 82, and in Berry v. State of Georgia, 1851, 10 Ga. 511. The rule in the Larrison case, supra, at pages 87 and 88 of 24 F.2d is that a new trial should be granted when,
'(a) The court is reasonably well satisfied that the testimony given by a material witness is false.
'(b) That without it the jury might have reached a different conclusion.
'(c) That the party seeking the new trial was taken by surprise when the false testimony was given and was unable to meet it or did not know of its falsity until after the trial.'
To be contrasted with the Larrison rule is the so-called Berry rule, to wit:
'(a) The evidence must be in fact, newly discovered, i.e., discovered since the trial; (b) facts must be alleged from which the court may infer diligence on the part of the movant; (c) the evidence relied on, must not be merely cumulative or impeaching; (d) it must be material to the issues involved; and (e) it must be such, and of such nature, as that, on a new trial, the newly discovered evidence would probably produce an acquittal.' Johnson v. United States, 8 Cir., 1929, 32 F.2d 127, 130.
The distinction between and the applicability of the two rules was explained in United States v. Johnson, 7 Cir., 1944, 142 F.2d 588, 591. The Larrison rule is applicable where there has been a recantation or where it has been proved that false testimony was given at the trial. Gordon v. United States, 6 Cir., 1949, 178 F.2d 896; United States v. Hiss, D.C.S.D.N.Y.1952, 107 F.Supp. 128, affirmed, 2 Cir., 1953, 201 F.2d 372. Otherwise, the Berry rule is applicable. It should be emphasized that under the Larrison rule the court must be reasonably well satisfied that testimony at the trial was false, and that without it the jury might have reached a different conclusion. I am not so satisfied.
Turning now to the application of the Berry rule to the instant case, it is noteworthy that this rule is quite generally applied by the federal courts and is of almost universal application among the States. 23 C.J.S., Criminal Law, § 1461; 39 Am.Jur. § 165. The law of New Jersey seems to follow the Berry rule. State v. Bunk, 1950, 4 N.J. 482, 73 A.2d 245. The leading case in the Third Circuit on the question of newly discovered evidence is United States v. Rutkin, 1953, 208 F.2d 647.
Was the evidence in fact newly discovered? The alleged evidence which defendant relies upon is the opinion of the handwriting expert, Mr. Haring. The entire issue of the authenticity of the signatures on the F.H.A. Completion Certificate was joined when Ginter denied forging the document. Defendant made no effort during the course of the trial to adduce independent evidence to controvert this denial, although every avenue was open to him to explore this issue during the trial. Ginter's testimony was taken ...