The opinion
*847 Neill, J.
(dissenting) — I am in disagreement with the majority’s premises: first, that a conviction of forgery by the making of a spurious instrument is proper where the accused is shown to have made out only a part of an instrument that is now complete, regardless of a lack of evidence that an efficacious instrument left the defendant’s hands; and, second, that there was sufficient evidence on which the jury could conclude beyond a reasonable doubt that defendant forged the signatures to the checks.
To constitute a forgery, there must be a making of a writing or instrument that, if genuine, would operate to affect some legal right. State v. Morse, 38 Wn.2d 927 , 234 P.2d 478 (1951); State v. Taes, 5 Wn.2d 51 , 104 P.2d 751 (1940); State v. Kuluris, 132 Wash. 149 , 231 P. 782 (1925). However, the accused need not have forged the entire instrument; it is sufficient under RCW 9.44.010 that his acts constitute a false making of a genuine instrument in whole or in part or the false making of a signature.
An accused has not committed a forgery by the false making of a genuine instrument in whole or in part unless his act has the effect of creating a seemingly “genuine instrument” or alters, erases or obliterates a genuine instrument. We have held that such an instrument is not created when a purported bank check does not contain the name of a bank. State v. Taes, supra. A blank check does not become a seemingly genuine instrument unless, among other things, it is signed. Here, it is quite doubtful that there is any evidence that the check blanks in question contained a signature when they left the defendant’s control. I will discuss this absence later. My present concern is with the majority’s assertion that such evidence is unnecessary. The majority rationale would hold an accused guilty of forgery whenever he is shown to have forged some part of an instrument, irrespective of the fact that his act did not result in a seemingly genuine instrument, so long as a sufficiently complete instrument is ultimately in evidence. Thus, if an accused once begins a forgery, and the incomplete instrument is then taken, completed and negotiated by a stranger, under the majority’s view the accused would *848 still be guilty of forgery. As I perceive the rule, an accused in some circumstances may be guilty of an attempt, but he is not guilty of the completed crime of forgery.
In a charge of forgery under RCW 9.44.020, the state must prove either that the accused perpetrated a “false making ... of a genuine instrument in whole or in part” or the “false making ... of the signature.” (Other acts of forgery defined in RCW 9.44.010 are not pertinent here.) As to the first method of forgery, the state must prove that the accused committed an act or acts which, when alone or when combined with prior or concerted acts of others, results in a seemingly genuine instrument. The proof required under the second method of forgery relates solely to the signature.
The jury had before it three genuine checks written by the defendant, the two bogus checks, and two samples of the writing of the complaining witness whose name had been forged on the bogus checks. The state’s own expert witness gave “negative testimony” about the sufficiency of this evidence. That is, he testified that the evidence presented was not sufficient as a basis for concluding that the defendant had forged the signatures on the bogus checks. The majority states that this uncountered negative testimony is of no significance and that the jury, in its own deliberations, could reach a conclusion which the expert stated was not reachable. I disagree.
In order to correctly perceive the present issue, it is important to narrow the scope of attention. This case does not involve the question of whether a trier of fact may, in the complete absence of expert testimony, make an independent comparison between the disputed writing and admittedly genuine specimens of the defendant’s handwriting which are in evidence. See Mitchell v. Mitchell, 24 Wn.2d 701 , 166 P.2d 938 (1946); State v. Simmons, 52 Wash. 132 , 100 P. 269 (1909); but cf. Clark v. State, 114 So.2d 197 , 80 A.L.R.2d 261, 268 (Fla. App. 1959). It may well be that, where especially technical subject matter is concerned, the burden of producing evidence should encompass a requirement of affirmative expert testimony; but that question is *849 not before us here. Rather, the matter before us is the effect of uncountered negative expert testimony pertaining to analysis of technical handwriting characteristics, not to comparison of same-name signatures.
The purpose and justification for expert testimony rests in the obscurity of the subject matter involved, because of which the jury requires the assistance of someone with special knowledge. CfMcCormick, Handbook of the Law of Evidence § 13 (1954). It seems to me that expert testimony is not only effective to draw conclusions from obscure or complex facts in evidence, but also to demonstrate that reasonable conclusions cannot be drawn from that evidence. In the latter instance, the expert testimony may be termed “negative.” In cases where such testimony goes uncountered, the efficacy of the evidence to make out a prima facie case on the point in issue is nullified. Thus, where expert testimony is appropriate as to an ultimate fact, uncountered negative expert testimony constitutes a failure of the evidence to support the party bearing the burden of proof on that issue.
It is not denied that handwriting analysis and comparison is an appropriate subject of expert testimony. In the present case, that testimony was entirely negative as to the possibility of concluding from the evidence presented that defendant had forged the signatures on the bogus checks. As such evidence is essential to a conviction of the offense charged, the state has failed to meet its burden of proof.
I would reverse.