State v. Bulna

• Decision Date: 20 September 1957
• Docket Number: No. A--522,A--522
• Citation: 46 N.J.Super. 313,134 A.2d 738
• Parties: The STATE of New Jersey, Plaintiff-Respondent, v. Andrew BULNA, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 313

46 N.J.Super. 313

134 A.2d 738

The STATE of New Jersey, Plaintiff-Respondent, v. Andrew BULNA, Defendant-Appellant.

No. A--522.

Superior Court of New Jersey Appellate Division.

Argued Sept. 4, 1957.

Decided Sept. 20, 1957.

David Cohn, Paterson, for defendant-appellant (Stanley J. Mann, Colonia, on the brief).

Thomas O'Brien, Ridgewood, for plaintiff-respondent (Guy W. Calissi, Hackensack, and Frank J. Cuccio, Garfield, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

CONFORD, J.A.D.

Defendant appeals from a conviction upon an indictment charging the forging of an assignment of a certificate of ownership of an automobile owned by Mary Bulna to one John Bowman with intent to 'prejudice, injure, damage, and defraud the said Mary Bulna,' contrary to N.J.S. 2A:109--1, N.J.S.A. Mary Bulna is the defendant's wife.

By the end of the presentation of the State's case the following factual situation had been developed. Andrew and Mary Bulna were husband and wife, living together with their children in Clifton until December 1955. They then separated, she going to live in Passaic and he with his mother in East Paterson. (Testimony by the defendant was that he took custody of the three older children and she of the youngest.) The records of the State Motor Vehicle Division show that title to a 1950 Dodge automobile was taken in the name of Mary Bulna in March 1956 and that Mary Bulna assigned title to the car to one John Bowman, of 267 Union Street, Hackensack, on July 27, 1956. This is the assignment alleged to have been forged by the defendant. On the same day a certificate of ownership was issued to John Bowman at the Haledon (Passaic County) agency of the Motor Vehicle Division.

Mrs. Swintek, a sister of Mary Bulna, testified that Mary had spoken to her on the phone July 26, 1956, saying she had to go 'to court' that day 'on a case about the children, about support'; also that at about 9:30 p.m. on July 27, 1956 she phoned the defendant to inquire if he had seen Mary and that he said she had been at his place, slept over (apparently the night before), and left early in the morning. Mrs. Swintek said she phoned the defendant again the next day, July 28, 1956, to inquire about Mary and that defendant stated that Mary had phoned him after Mrs. Swintek's call the night before 'and said that she was coming to his house to pick up her little boy.'

A Mrs. Trebowski testified that Mary visited with her 'for about a month before she disappeared.' Mary was not seen or heard from after July 28, 1956. Mrs. Trebowski said she last saw her at 11:00 p.m. July 26, 1956, when she left in her car with the youngest child.

On July 28, 1956 the Dodge automobile in question was found by the police parked on the street in East Paterson three or four blocks from the home of the defendant. No one claimed the car. Investigation of the public motor vehicle records disclosed the registration in the name of John Bowman, but an inquiry at his supposed Hackensack address revealed that no person by that name lived there. No John Bowman was ever identified as owner of the car or otherwise in connection with the case.

Early in August 1956 the Bergen County Prosecutor's office received a complaint that Mary Bulna was missing. The defendant was invited by a detective in that office to submit samples of his handwriting, and he did so voluntarily. These were submitted for study and analysis to Francis D. Murphy, a handwriting expert, along with other authenticated specimens of defendant's and of Mary Bulna's handwriting. Murphy testified that he studied and compared these, in the original and in enlargements, all of which were introduced in evidence. He gave it as his opinion that the writings on the assignment of certificate of ownership of the car and on the sample specimens voluntarily supplied by defendant were in the hand of the same person; but that the former and the writing on the authentic Mary Bulna specimens were not. Particularizations of similarity and difference were given in detail by the witness.

No other proof of defendant's alleged forgery of the certificate was submitted. Nor was there any direct proof of any exercise of possession or dominion by the defendant over either the car or the registration certificate. The State did not identify defendant as the person who appeared at the Haledon agency in connection with the assignment or the issuance of the new registration in the name of Bowman. Defendant moved, unsuccessfully, for dismissal at the end of the State's case and at the end of the entire case. He asserts on appeal that the State failed to prove his guilt beyond a reasonable doubt, and, in particular, that in respect to the necessary element of the offense of intent to 'prejudice, injure, etc. Mary Bulna,' the proof was lacking in the strength requisite to warrant submission to a jury.

We deal first with the proofs going to the alleged forgery. These were in our opinion sufficient. The jury had before it not only the well-explained opinion of a qualified expert but also the specimens from which he drew his conclusions. From these the jury was justified in concluding, as its verdict shows it did, that defendant was the writer of the controversial assignment of certificate.

We acknowledge greater difficulty in respect to the sufficiency of the proofs respecting intent to prejudice or damage Mary Bulna, as charged in the indictment. Here the proof, even assuming as a fact the defendant's forgery of the certificate, is entirely circumstantial. The specific intent impliedly charged against the defendant is, presumably, the conversion or misappropriation of the car contrary to the assent of the owner, Mary Bulna. It is held that where the proofs of the State are circumstantial, and, at the end of its case, 'reasonably and fairly' make for a hypothesis of innocence, there should be an acquittal, notwithstanding that an inference of guilt is also possible. State v. Pincus, 41 N.J.Super. 454, 459, 125 A.2d 420 (App.Div.1956); State v. Fox, 12 N.J.Super. 132, 137, 79 A.2d 76 (App.Div.1951); and see State v. Rhams, 14 N.J. 282, 285, 102 A.2d 40 (1954). Even the much stronger criterion that the evidence must not alone be consistent with the defendant's guilt but must exclude every reasonable hypothesis of innocence (or 'except that of guilt') is to be found expressed in the cases. See the Fox and Rhams cases, supra, at the pages indicated; State v. Donohue, 2 N.J. 381, 390, 67 A.2d 152 (1949). As an abstract theory of sufficiency of proof, this doctrine is widely held. 1 Underhill's Criminal Evidence (5th ed. 1956), § 17, p. 20, et seq.; 23 C.J.S. Criminal Law (1940) § 907c, p. 149. However, an unfortunate misapprehension of the Fox case, supra, as calling upon the trial judge or an appellate court to dictate an acquittal in a case based upon circumstantial proof if The court does not believe the evidence excludes every reasonable hypothesis of innocence, Even though a jury might, has taken wide root in the trial bar. But a careful reading of State v. Donohue, supra, and State v. Boyd, 137 N.J.L. 23, 26, 57 A.2d 521 (Sup.Ct.1948), affirmed 137 N.J.L. 615, 61 A.2d 235 (E. & A.1948), both cited in the Fox case as authority for the broader rule for exculpation, particularly the Boyd case, makes it clear that the rule is one for application by the Jury, under proper instructions, and no sound conclusion can be drawn from these authorities that the court must acquit under that formula if its own view, favorable to the defendant, as to the effect of the proofs in excluding every reasonable hypothesis of innocence, differs from that which a jury might debatably entertain. State v. O'Shea, 28 N.J.Super. 374, 378, 100 A.2d 772 (App.Div.1953), affirmed 16 N.J. 1, 105 A.2d 833 (1954). In view of the infinite variety of factual settings in which criminal liability is susceptible of establishment only by circumstantial proof and of the wide range of degree of probative force which such proof may generate, it appears unwise to attempt formulaic generalization beyond the flexible statement of the rule found in the Pincus case, supra, and a reminder of the statement by former Chief Justice Case in the Boyd case, supra (137 N.J.L. at pages 25, 26, 57 A.2d at page 523) that 'a finding of guilt in a criminal case may rest upon indirect or circumstantial evidence if that evidence be in quality sufficient to generate in the jurors' minds a belief and conviction of guilt beyond a reasonable doubt.'

Applying the rule of the Pincus case, supra, to the facts at the end of the State's case, and assuming as a fact that defendant made out and signed his wife's name to the certificate, we are not satisfied that the proofs so firmly sustain a hypothesis of innocence of criminal intent that a jury could not properly find to the contrary. The very act of forgery itself will be sufficient to imply an intent to defraud in the context of the circumstances of the particular case. State v. Redstrake, 39 N.J.L. 365, 369 (Sup.Ct.1877). The forgery by defendant of this certificate to a fictitious person and the consequent registration of the car in that name would give rise to the natural inference that the defendant intended to convert the car or its value to his own use. Only by assuming that these acts were done with Mary Bulna's consent can they be given an innocent face. But, on the evidence submitted on the State's case, there is no reasonable and fair foundation for that inference. When last seen, Mrs. Bulna, had driven off with the car.

If defendant asks the court to sustain the hypothesis of innocence of fraudulent intent on the basis of added information elicited in the course...