Gilhooly v. State

Court of Criminal Appeals of Oklahoma

Gilhooly v. State

1981 OK CR 33, 625 P.2d 1274, 1981 Okla. Crim. App. LEXIS 198

CourtCourt of Criminal Appeals of Oklahoma

DecidedMarch 25, 1981

DocketF-79-324

StatusPublished

Cited by2 cases

This text of 1981 OK CR 33 (Gilhooly v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gilhooly v. State, 1981 OK CR 33, 625 P.2d 1274, 1981 Okla. Crim. App. LEXIS 198 (Okla. Ct. App. 1981).

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OPINION

BRETT, Presiding Judge:

Donald Joseph Gilhooly, the appellant, was convicted in the District Court of Tulsa County, Case No. CRF-77-2747, for two counts of Uttering a Forged Instrument, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 1592. Punishment was fixed at two (2) twelve (12) year terms of imprisonment, to run concurrently.

Appellant was employed by the prosecuting witness, Santo Dellaria, September' 15 through 21,1977. His duties included bookkeeping and making deposits at the bank. On September 21, 1977, two checks written on Dellaria’s business account were presented for payment at Guaranty National Bank. Dellaria testified that these checks were not written by him nor were they authorized to be written on his account. Dellaria further testified that the signature on the two checks was that of the appellant.

The appellant asserts that the trial court erred in allowing the witness Dellaria to testify and give an opinion concerning the authorship of the forged signatures. The testimony of Dellaria reveals that at the time the cheeks were first shown to him he suspected the handwriting to be that of appellant. However, Dellaria made no mention of his suspicions to the bank officers or the members of the police force who were at the bank at that time. Dellaria later compared and studied the signatures on the checks with samples of the appellant’s handwriting that he had in his possession.

For a non-expert to authenticate or identify handwriting, the witness’s opinion must be “... based upon familiarity not acquired for purposes of litigation.” 12 O.S.Supp. 1980, § 2901(B)(2). Because Mr. Dellaria studied the handwriting of the appellant in order to satisfy himself that the signature was that of the appellant’s before he could testify to the same, we find it was error for the trial court to admit his testimony as evidence. The witness’s comparison of the appellant’s handwriting to the signature on the check was made for the express purpose of testifying with confidence at trial.

For this reason, the judgment and sentence appealed from is REVERSED and REMANDED.

CORNISH, J., concurs. BUSSEY, J., dissents.

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OPINION

BRETT, Presiding Judge:

Donald Joseph Gilhooly, the appellant, was convicted in the District Court of Tulsa County, Case No. CRF-77-2747, for two counts of Uttering a Forged Instrument, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 1592. Punishment was fixed at two (2) twelve (12) year terms of imprisonment, to run concurrently.

Appellant was employed by the prosecuting witness, Santo Dellaria, September' 15 through 21,1977. His duties included bookkeeping and making deposits at the bank. On September 21, 1977, two checks written on Dellaria’s business account were presented for payment at Guaranty National Bank. Dellaria testified that these checks were not written by him nor were they authorized to be written on his account. Dellaria further testified that the signature on the two checks was that of the appellant.

The appellant asserts that the trial court erred in allowing the witness Dellaria to testify and give an opinion concerning the authorship of the forged signatures. The testimony of Dellaria reveals that at the time the cheeks were first shown to him he suspected the handwriting to be that of appellant. However, Dellaria made no mention of his suspicions to the bank officers or the members of the police force who were at the bank at that time. Dellaria later compared and studied the signatures on the checks with samples of the appellant’s handwriting that he had in his possession.

For a non-expert to authenticate or identify handwriting, the witness’s opinion must be “... based upon familiarity not acquired for purposes of litigation.” 12 O.S.Supp. 1980, § 2901(B)(2). Because Mr. Dellaria studied the handwriting of the appellant in order to satisfy himself that the signature was that of the appellant’s before he could testify to the same, we find it was error for the trial court to admit his testimony as evidence. The witness’s comparison of the appellant’s handwriting to the signature on the check was made for the express purpose of testifying with confidence at trial.

For this reason, the judgment and sentence appealed from is REVERSED and REMANDED.

CORNISH, J., concurs. BUSSEY, J., dissents.

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1981 OK CR 33, 625 P.2d 1274, 1981 Okla. Crim. App. LEXIS 198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilhooly-v-state-oklacrimapp-1981.

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