United States v. Galvin

• Decision Date: 17 May 1968
• Docket Number: No. 16544.,16544.
• Parties: UNITED STATES of America v. David GALVIN, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

394 F.2d 228 (1968)

UNITED STATES of America v. David GALVIN, Appellant.

No. 16544.

United States Court of Appeals Third Circuit.

Argued April 1, 1968.

Decided May 17, 1968.

Thomas P. Calligy, Calligy & Flynn, Hoboken, N. J., for appellant.

George J. Koelzer, Asst. U. S. Atty., Newark, N. J. (David M. Satz, Jr., U. S. Atty., Newark, N. J., on the brief), for appellee.

Before KALODNER, GANEY and VAN DUSEN, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This appeal challenges the District Court judgment, commitment and order of probation entered January 20, 1967, on a jury verdict of guilty on each of four counts of an indictment charging appellant under 18 U.S.C. § 495 with forging and uttering two separate United States Treasury checks (one payable to Catherine C. Slane and the other to J. F. and A. M. Foster) on the ground that the evidence is not sufficient to justify a reasonable mind in concluding, beyond a reasonable doubt, that appellant was guilty as charged.

The evidence, particularly when all logical inferences therefrom are drawn in favor of the jury's verdict (see United States v. Russo, 123 F.2d 420, 421-22 (3rd Cir. 1941); Thomas v. United States, 93 U.S.App.D.C. 392, 211 F.2d 45, 46 (1954), cert. den. 347 U.S. 969, 74 S.Ct. 780, 98 L.Ed. 1110 (1954)), justified the jury in finding that (1) these checks (dated April 29 and May 1, 1964) had been stolen from the mail before receipt by the payees, (2) the checks were exchanged for cash by appellant on or about May 1, 1964, when they contained forged endorsements, (3) the endorsements of the joint payees (Fosters) were made by the same person, (4) appellant, while engaged in a poker game, accepted approximately 10% less than the face amount of the checks from an individual when he cashed them and he never made restitution to such individual after being informed by the latter that the checks were dishonored, and (5) he never made any attempt to locate the individuals who were in the poker game at the time he alleges the checks were placed in the "pot" which he won. Also, a qualified handwriting expert testified that "it is probable that" appellant forged the endorsements on both checks. Although appellant apparently concedes that such testimony is admissible,¹ he contends that it is not sufficient to permit a jury to find guilt beyond a reasonable doubt on the forgery counts, and that the uttering counts are "so inter-related that reversal on the forgery conviction requires reversal on the uttering conviction."

In view of appellant's exclusive possession of the fruits of the crime shortly after its commission² and the other evidence referred to above, such as the uncontradicted and positive testimony that the Foster check was forged, that appellant had accepted about 10% less than face value of these Government checks, and that he had never looked for the alleged poker player who had uttered the forged check in the card game, there was ample evidence to justify submission of the fourth to sixth counts to the jury. United States v. Chappell, 353 F.2d 83, 84 (4th Cir. 1965); United States v. Allard, 240 F.2d 840, 841 (3rd Cir. 1957); cert. den. sub nom. Fishman v. United States, 353 U.S. 939, 77 S.Ct. 814, 1 L.Ed.2d 761 (1957).³

Although the evidence of guilt of forgery as to the Slane check, as charged in the third count, is not as strong as that on the other three, above-mentioned counts,⁴ the evidence of the facts summarized under 1, 2, 4 and 5 in the second paragraph of this opinion, when supplemented by the expert's testimony that it is probable that appellant forged the endorsement on this check, is sufficient to support the verdict of guilty on this count. As stated in United States v. Allard, supra, 240 F.2d at 841, "* * * all the pieces of evidence against the defendant, taken together, make a strong enough case to let a jury find him guilty beyond a reasonable doubt."

The District Court judgment, commitment and order of probation dated January 20, 1967, will be affirmed.

1 Admissibility under F.R.Crim.P. 26 is governed by "the principles of common law." The common law makes no distinction as to admissibility of qualified expert opinion on handwriting in criminal, as opposed to civil, cases. 7 Wigmore, Evidence, § 1991, p. 177 (3d Ed. 1940). In addition, the opinion of a handwriting expert, once admitted, can be used for the same purposes and to the same effect as the opinion of other experts, see, e. g., United States v. Acosta, 369 F.2d 41, 42 (4th Cir. 1966), cert. den. 386 U.S. 921, 87 S.Ct. 886, 17 L.Ed. 2d 792 (1967), and is not inadmissible under the Opinion Rule or otherwise because it expresses a probability, e. g., 7 Wigmore, Evidence, § 1976 (3d Ed. 1940); Curtis v. A. Garcia y Cia, 272 F.2d 235, 242 (3rd Cir. 1959); Bearman v. Prudential Ins. Co. of America, 186 F.2d 662, 665 (10th Cir. 1951); Francis v....