572 S.W.2d 238 | Mo. Ct. App. | 1978
Defendant appeals his conviction on two counts of forgery. The defendant is a citizen of Iran, and the trial was conducted with an interpreter because of the defendant’s limited understanding of the English language.
The defendant urges that the trial court erred in permitting an expert witness to testify on rebuttal with respect to a comparison of handwriting samples of the defendant made during cross-examination and the handwriting on the forged checks.
The sufficiency of the evidence is not in question. The evidence developed the fol
The State also offered the evidence of a handwriting expert who testified in the case in chief that the handwriting on the Ely checks was most probably the handwriting of the person who gave exemplars. The exemplars were identified as samples defendant gave the police. During the cross-examination of the defendant, the State obtained two handwriting samples of the defendant. After the defendant’s testimony and after the close of the defendant’s case, the State offered the handwriting expert as a rebuttal witness. The expert stated that his opinion based on the samples would have to be a qualified one since he did not have the time or the equipment to make a complete examination. He further testified that there were features of the handwriting which appeared on both the forged checks and the handwriting samples of the defendant obtained on cross-examination and that there were no major inconsistencies. The defendant objected on the grounds that it was improper rebuttal and constituted an invasion of the province of the jury because of the qualified nature of the expert’s opinion.
Defendant’s first ground for objection is that the expert evidence was not proper rebuttal. The defendant’s claim of error must be rejected. The nature and extent of rebuttal evidence is within the sound discretion of the trial court. State v. Parker, 543 S.W.2d 236 (Mo.App.1976); State v. Harris, 539 S.W.2d 793 (Mo.App.1976). Although the testimony in question involved an exhibit which was obtained by the State, it should be noted that it was obtained on cross-examination of the defendant. Clearly, testimony of the defendant, whether on direct or cross-examination can be the proper subject of rebuttal by the State. State v. Williams, 442 S.W.2d 61 (Mo. banc 1968) (overruled on other grounds); State v. Kirk, 510 S.W.2d 196 (Mo.App.1974). The handwriting sample was merely an extension of the defendant’s testimony elicited on cross-examination. In addition to the writing sample itself, there was testimony from which the jury could infer that there were differences between the checks and the in-court sample. The defendant testified on cross-examination that “This is my handwriting but this is not.” The testimony of the expert was proper rebuttal because it was used to explain or counteract evidence which had arisen during the cross-examination of the defendant. State v. Williams, supra; State v. Hoyel, 534 S.W.2d 266 (Mo.App.1975).
Defendant’s second claim of error concerning the qualified nature of the expert testimony must likewise be denied. The defendant never challenged the witness’ qualifications as a handwriting expert. He did not cease to be an expert merely because the second observation of samples was made out of the laboratory. The expert’s testimony met the test of expertise in that it was capable of being helpful to the jury. Parlow v. Dan Hamm Drayage Company, 391 S.W.2d 315, 326 (Mo.1965). The testimony gave the jury aid in knowing what to look for when comparing the various handwriting samples. The defendant cites Galovich v. Hertz Corporation, 513 S.W.2d 325 (Mo.1974), to support his argument that because the expert qualified his opinion he should have been disqualified as an expert. That case is not supportive of this argument since the court in Galovich
Judgment of conviction is affirmed.
All concur.