On certification granted.
For affirmance -- Chief Justice Weintraub, and Justices Wachenfeld, Burling, Jacobs, Francis and Proctor. For reversal -- Justice Heher. The opinion of the court was delivered by Wachenfeld, J.
The defendant, Andrew Bulna, was convicted of forging an assignment of a certificate of ownership of an automobile owned by his wife, Mary Bulna, with intent to "prejudice, injure, damage and defraud the said Mary Bulna, contrary to the provisions of N.J.S. 2 A:109-1."
The Appellate Division reversed on the ground that the trial judge had unduly restricted the defendant's right to cross-examine a handwriting expert produced on behalf of the State, holding:
"Under all the circumstances, particularly the heavy dependence of the verdict of conviction upon the testimony of the expert, Murphy, we are of the conviction that the disallowance of any cross-examination whatever for the purpose proposed by defendant was a material curtailment of his rights, calling for a new trial as a matter of substantial justice." State v. Bulna, 46 N.J. Super. 313, 322 (1957).
We granted the State's petition for certification.
Andrew Bulna and his wife Mary lived with their four children in Clifton, New Jersey, until the latter part of 1955, when they separated, the wife going to live in Passaic and the defendant moving into his mother's home in East Paterson. He assumed sole custody of three of the children while his wife took the fourth. About seven months thereafter, Mary disappeared completely and has not been seen or heard from since.
According to the records of the State Motor Vehicle Division, on March 16, 1956 title to a 1950 Dodge automobile was transferred from City Motors Sales, Inc., to Mary Bulna, and subsequently, on July 27, 1956, approximately the date of her disappearance, assigned by her to one John Bowman. On that same day a certificate of ownership was issued to John Bowman at the Haledon agency of the Motor Vehicle Division.
Defendant testified that his wife had spent the night of either -- it is not clear which -- July 26 or 27, 1956 at his mother's home and had departed in the early morning of the 27 or 28. Another witness, whom Mary had been visiting, stated that she last saw Mary at 11 P.M. on July 26, 1956 when she left in her Dodge automobile with the youngest child.
On July 28, 1956 the vehicle in question was discovered by the East Paterson Police parked about three and a half blocks from the defendant's residence. No one claimed it, but the subsequent police investigation disclosed that it was registered in the name of John Bowman, 267 Union Street, Hackensack. Further police inquiry was unsuccessful and indicated that the name and address on the registration were fictitious. John Bowman was never located or identified.
Thereafter, the Bergen County Prosecutor was notified that Mary Bulna was missing. During the investigation which ensued, defendant cooperated with the police and submitted to them specimens of his handwriting. He was subsequently indicted for forging his wife's signature to the document assigning her title to the 1950 Dodge to John Bowman. Conviction followed.
The State's case was based almost exclusively on the testimony of its handwriting expert, Francis D. Murphy, who stated the opinion that defendant had forged the signature "Mary J. Bulna" on the document assigning ownership of the Dodge to John Bowman. A number of attempts were made by defense counsel to test Murphy's competence as a handwriting expert, all of which were disallowed by the trial court.
The basic question presented on this appeal is whether, under any circumstances, a party should be permitted to attempt to impeach the competency of a handwriting expert and the value of his opinions by the use on cross-examination of writings not yet authenticated nor even part of the case.
Francis D. Murphy, the expert produced by the State, testified that in his opinion the handwriting samples prepared for the prosecutor's office by Andrew Bulna, and the signature "Mary J. Bulna" on the questioned assignment of title, had been written by the same hand. He also stated that the assignment had not been inscribed by the same person who had signed the name "Mary Bulna" on an automobile driver's renewal application and a passenger vehicle registration application, both dated July 13, 1953, and, under "Statement of Buyer," on an assignment of title, dated March 16, 1956, transferring ownership of a 1950 Dodge automobile from City Motors Sales Co., Inc., to Mrs. Bulna. When the defense presented its case, Andrew Bulna admitted that the signature on the July 27, 1956 assignment to "John Bowman" was not his wife's.
Mrs. Bulna's sister, Daisy Swintek, identified the signatures on the driver's license and registration applications of July 13, 1953 as those of Mary Bulna. There is no reason to doubt that Mrs. Bulna also signed, as buyer, the March 16, 1956 assignment to her by City Motors.
Murphy's testimony that Andrew Bulna had forged Mary Bulna's name on the purported assignment to "John Bowman" was the only evidence directly connecting defendant with the crime charged. It was not shown that Andrew Bulna had ever assumed possession of Mary Bulna's automobile nor that it was he who had obtained a new certificate of ownership in the name of "John Bowman" at the Haledon Motor Vehicle Agency.
In addition to cross-examining on the methods and criteria employed in analyzing and comparing handwriting specimens, defendant's counsel strove in the following ways to diminish or to destroy the ...