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Docket Number

No. 29,587.

Attorney(S)

Ferdinand Samper, of Indianapolis, for appellant. Edwin K. Steers, Attorney General, and Merl M. Wall, Deputy Attorney General, for appellee.

Judges

ACHOR, J.

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Smart Summary

Beck v. State of Indiana — Summary of Opinion (Supreme Court of Indiana, filed April 24, 1958)

Factual and Procedural Background

Gilbert Beck (appellant) was tried in the Criminal Court of Marion County, Division One, before Judge Scott A. McDonald and was convicted on April 16, 1957 of uttering a forged instrument. The check admitted in evidence was similar to checks stolen from a cartage company owned by William H. Cloud, bore a check number within the numerical bracket of the stolen checks, was made out to Delbert Marlowe Traylor, and was signed "William H. Cloud." Cloud testified that he had never written a check to Beck or Traylor and had not authorized anyone to sign the check for him. On or about March 22, 1957, Beck cashed the check at a grocery store operating as Dady's Market; a grocery clerk accepted the check and later identified Beck from police files and in a police lineup. Beck appealed his conviction.

Legal Issues Presented

Whether the trial court erred in overruling appellant's motion for a directed verdict.
Whether the verdict is supported by sufficient evidence.
Whether the verdict is contrary to law.
Whether the crime of false pretense is a lesser included offense of uttering a forged instrument, such that the trial court should have instructed the jury accordingly.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kaley v. State, 234 Ind. 77, 123 N.E.2d 643 (1955)	Presumptions favor the trial court's finding and judgment on appeal; appellate court considers evidence most favorable to the State.	Quoted by the court to support the principle that on appeal it will not weigh evidence but will consider only evidence most favorable to the State when reviewing a conviction challenged as unsupported by evidence.
Myles v. State, 234 Ind. 129, 124 N.E.2d 205 (1955)	Same appellate-presumption principle as Kaley: deference to trial court findings and consideration of evidence favorable to the State.	Cited alongside Kaley to reinforce the standard of appellate review applied in assessing challenges to sufficiency of the evidence.
Baker v. State, 236 Ind. 55, 138 N.E.2d 641 (1956)	Standard for when appellate court will consider sufficiency of evidence: only if material facts are supported by so little probative evidence that the jury could not reasonably have been convinced of guilt beyond a reasonable doubt.	Relied upon to explain the threshold for appellate intervention on sufficiency grounds; the court applied this standard and found it could not say the evidence was so lacking as to justify reversal as a matter of law.
Penn v. State, 237 Ind. 374, 146 N.E.2d 240 (1957)	Reiterates the Baker standard on appellate review of evidentiary sufficiency.	Used together with Baker to support the court's conclusion that the evidence before the jury was not so insubstantial as to require reversal.

Court's Reasoning and Analysis

The court's analysis proceeded in two principal parts: (1) review of the sufficiency-of-evidence claims and related procedural assignments; and (2) analysis of whether false pretense is a lesser included offense of uttering a forged instrument.

1) Standard of appellate review — The court applied well-established principles favoring the trial court's findings: on appeal the reviewing court will not weigh the evidence but will consider only the evidence most favorable to the State. Citing Kaley and Myles, the court emphasized that it will examine sufficiency only if the material facts are supported by so little probative evidence that, as a matter of law, no reasonable jury could have been convinced of guilt beyond a reasonable doubt (citing Baker and Penn). Applying those standards to the facts shown by the evidence most favorable to the State (the stolen-check indicia, Cloud's lack of authorization, Beck's cashing of the check at Dady's Market, and the grocery clerk's identification of Beck), the court concluded it could not say as a matter of law that the evidence was so lacking as to require reversal.

2) Lesser-included-offense analysis — The court next considered whether false pretense (Burns' 1956 Repl. § 10-2103) is necessarily included within the statutory offense of uttering a forged instrument (Burns' 1956 Repl. § 10-2102). The court stated the controlling analytical rule: to be an included offense, all elements of the lesser offense must be contained in the greater offense. The court then set out descriptive formulations from authoritative secondary sources:

Uttering: offering a forged instrument, knowing it to be forged, with a representation that it is genuine and with intent to defraud; the offense is complete when a false instrument is offered (37 C.J.S. Forgery § 37).
False pretense: a false representation of a past or existing fact, calculated and intended to deceive and which does in fact deceive, by means of which one person obtains value from another without compensation; the offense is complete only when property is obtained and title as well as possession must pass (35 C.J.S. False Pretense §§ 1, 24).

The court contrasted the offenses on two primary grounds drawn from the statutes and the authorities: (a) uttering applies only to forged instruments (a limited class of instruments), whereas false pretense is not so limited; and (b) uttering is complete when the forged instrument is merely offered, whereas false pretense is complete only upon obtaining property (transfer of title as well as possession). On the basis of these divergent essential elements and the differing penalties prescribed by statute, the court concluded the offenses are intended to be and are separate and distinct crimes, and that neither is necessarily included in the other. Because false pretense is not necessarily a lesser included offense of uttering a forged instrument, the trial court did not err in refusing an instruction that false pretense was a lesser included offense.

Holding and Implications

Holding: The court affirmed the conviction. Judgment affirmed.

Implications:

Direct effect on the parties: The appellant's conviction for uttering a forged instrument was affirmed; the trial court did not err in denying a directed verdict nor in denying the instruction that false pretense is a lesser included offense under the facts and law presented.
Legal consequence articulated by the court: False pretense and uttering a forged instrument are distinct offenses because the elements necessary to constitute false pretense (notably, the obtaining of property and passage of title) are not necessarily contained in the offense of uttering a forged instrument (which is limited to forged instruments and is complete upon offering the instrument). Therefore false pretense is not necessarily a lesser included offense of uttering a forged instrument.
The opinion applies established appellate-review standards (deference to trial-court findings and a high threshold for reversal on sufficiency grounds) and does not purport to create a novel standard beyond those cited precedents.

Citation in original opinion: reported in 149 N.E.2d 695. Judgment by Justice Achor; Emmert, C.J., Arterburn, Bobbitt and Landis, JJ., concurred.

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BECK v. STATE OF INDIANA.

1. APPEAL — Sufficiency of Evidence — Contrary to Law — Presumptions in Favor of Judgment — Weighing Evidence — Criminal Law. — The presumptions are in favor of the finding and judgment of the trial court and on appeal from conviction on the ground that evidence failed to support the trial court's finding and judgment, the reviewing court will not weigh the evidence but will only consider the evidence most favorable to the state. p. 212.

2. APPEAL — Evidence — Sufficiency of — Reasonable Doubt — Reasonable Men. — The court on appeal will consider the sufficiency of the evidence only when the material facts in issue are supported by so little evidence of probative value that the court can, as a matter of law, determine that the jury could not, as reasonable men, have been convinced of accused's guilt beyond a reasonable doubt. p. 212.

3. CRIMINAL LAW — Lesser Included Offense — Definition. — To be an included offense, all the elements of the lesser offense must be contained in the greater offense, the greater containing certain elements not contained in the lesser. p. 213.

4. UTTERING A FORGED INSTRUMENT — Criminal Law — Definition — Intention to Defraud — Representation. — Uttering a forged instrument has been described as follows: "Uttering is the offering of a forged instrument, knowing it to be such, with a representation that it is genuine, and with an intent to defraud. It is not essential that accused should have been implicated in the forgery, that the instrument be accepted as genuine or that anyone be actually prejudiced by it." p. 213.

5. FALSE PRETENSE — Criminal Law — Definition — Representation — Intent to Deceive. — False pretense has been described as follows: "A criminal false pretense may be defined to be the false representation of a past or existing fact, whether by oral or written words or conduct which is calculated to deceive, intended to deceive, and does in fact deceive, and by means of which one person obtains value from another without compensation." p. 213.

6. CRIMINAL LAW — Lesser Included Offense — Uttering a Forged Instrument — False Pretense — Separate Offenses. — Although an offense of false pretense might be accomplished through the utterance of a forged instrument, and although the charge of uttering a forged instrument might be made broad enough to include all the elements of false pretense, it would appear that from the divergence of essential elements (uttering is limited to a forged instrument and the offense is complete when a false instrument is merely offered whereas false pretense is complete only when property is obtained) and of the penalty imposed for the respective crimes that the offenses are intended to and do constitute separate and distinct crimes and that neither is necessarily included in the other. p. 214.

ACHOR, J.

The appellant in this case was charged with uttering a forged instrument. Appellant was tried and convicted of the offense on April 16, 1957.

The evidence most favorable to the state shows that the check in evidence was similar to and bore a check number which was within the numerical bracket of checks which were stolen from a cartage company owned by William H. Cloud, that it was made out to Delbert Marlowe Traylor, that it was signed "William H. Cloud" and that Cloud had never written a check to either Beck or Traylor, and had never authorized anyone to sign the check in question for him. On or about March 22, 1957, Beck, the appellant, cashed the check in a grocery store doing business as Dady's Market. A grocery clerk accepted the check. About two days later he identified the picture of Beck in the police files. He also later identified Beck in the police lineup.

Appellant was found guilty and appeals. He assigns as error (1) the fact that the court overruled its motion for a directed verdict; (2) that the verdict is not supported by sufficient evidence; (3) that the verdict is contrary to law, and (4) that the court refused to instruct the jury that the crime of false pretense is a lesser included offense in the crime of uttering a forged instrument.

In answer to the first three assignments of error, the law is well settled that the presumptions are in favor of the finding and judgment of the trial court, and on appeal from 1. conviction on the ground that evidence failed to support the trial court's findings and judgment, the reviewing court will not weigh the evidence but will only consider the evidence most favorable to the state. Kaley v. State (1955), 234 Ind. 77, 123 N.E.2d 643; Myles v. State (1955), 234 Ind. 129, 124 N.E.2d 205.

This court will consider the sufficiency of the evidence only when the material facts in issue are supported by so little evidence of probative value that this court can, as a 2. matter of law, determine that the jury could not, as reasonable men, have been convinced of accused's guilt beyond a reasonable doubt. Baker v. State (1956), 236 Ind. 55, 138 N.E.2d 641; Penn v. State (1957), 237 Ind. 374, 146 N.E.2d 240. We cannot say as a matter of law that there was such lack of convincing evidence in this case.

We next consider the issue raised by appellant's fourth assignment of error, whether the offense of false pretense (§ 10-2103, Burns' 1956 Repl.) is an 3-5. offense necessarily included within the charge of uttering a forged instrument (§ 10-2102, Burns' 1956 Repl.). The answer to this question must be reached from an analysis of the respective statutes. To be an included offense, all the elements of the lesser offense must be contained in the greater offense — the greater containing certain elements not contained in the lesser. Thus, uttering a forged instrument has been described as follows: "Uttering is the offering of a forged instrument, knowing it to be such, with a representation that it is genuine, and with an intent to defraud. It is not essential that accused should have been implicated in the forgery, that the instrument be accepted as genuine, or that anyone be actually prejudiced by it." 37 C.J.S., Forgery, § 37, p. 57. Whereas, false pretense has been described as follows: "A criminal false pretense may be defined to be the false representation of a past or existing fact, whether by oral or written words or conduct, which is calculated to deceive, intended to deceive, and does in fact deceive, and by means of which one person obtains value from another without compensation." 35 C.J.S., False Pretense, § 1, p. 636.

"Whoever, with intent to defraud another, designedly, by color of any false token or writing, or any false pretense, obtains the signature of any person or persons, firm or corporation to any written instrument, or obtains from any person, persons, firm or corporation any money, or the transfer of any bond, bill, receipt, promissory note, draft, or check, or thing of value, or whoever sells, barters, or disposes of (or offers to sell, barter or dispose of any transfer, bond, bill, receipt, promissory note, draft or check, or anything of value, knowing the signature of the maker, indorser, or guarantor thereof to have been obtained by any false pretense, shall, on conviction, . . ." (§ 10-2103)

"Whoever . . . utters or publishes as true any such instrument or matter, knowing the same to be false, defaced, altered, forged, counterfeited, falsely printed or photographed, with intent to defraud any person, body politic or corporation shall, on conviction, be imprisoned in the state prison not less than two [2] years nor more than fourteen [14] years, and fined not less than ten dollars [$10.00] nor more than one thousand dollars [$1,000]." (§ 10-2102)

Thus the two offenses are distinguishable first, that in the offense of uttering a forged instrument the action is limited to a forged instrument. Secondly, the offenses are distinct in that whereas the offense of uttering a forged instrument is complete when a false instrument is merely offered by one knowing it to be forged; whereas to sustain a charge of false pretense, "The false pretense having been made, the offense is complete when, and only when, property is obtained as a result of it; title as well as possession must pass, . . ." 35 C.J.S., False Pretenses, § 24, p. 665. (Our italics.) See also, Ewbanks Cr. Law, Symmes Ed., § 1039, p. 605.

Therefore, we conclude that, although an offense of false pretense might be accomplished through the utterance of a forged instrument, and, although the charge of uttering a forged 6. instrument might be made broad enough to include all the elements of false pretense, it would appear that from the divergence of essential elements involved and of the penalty imposed for the respective crimes that the offenses are intended to and do constitute separate and distinct crimes, and that neither is necessarily included in the other.

Judgment affirmed.

Emmert, C.J., Arterburn, Bobbitt Landis, JJ., concur.

NOTE. — Reported in 149 N.E.2d 695.

BECK v. STATE