GREEN v. STATE

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Docket Number

No. 27573.

Attorney(S)

F.E. Leach, for appellant. The crime of forgery is an entirely separate and distinct offense from the crime of uttering a false instrument, the former being section 963 of Hemingway's Code of 1927, and is the statute under which the defendant was tried and convicted; and the latter being section 968 of Hemingway's Code of 1927. See Burgess v. State, 33 So. 499. The defendant testified that he was not even in Carthage on the day the check was passed to the prosecuting witness and also testified that he had worked at a saw mill for the prosecuting witness, staying in a little house furnished by him and that he did not even own an automobile of any kind. Under the condition of this record we respectfully submit that the jury did not have sufficient facts to even justify the submission of the case to them, and certain it is, from our viewpoint, that the facts were not sufficient to warrant a conviction. From the state's viewpoint in this case, the crime for which the defendant should have been tried, was uttering a forged instrument, under section 968 of Hemingway's Code of 1927. A very similar case is that of Graves v. State, 114 So. 123. The Graves case, supra, was affirmed by this court, but from a reading of the record it is conclusively shown that Graves uttered the forged check, the error complained of being the amendment made by the district attorney during the trial of the case. James W. Cassedy, Jr., Assistant Attorney-General, for the state. It is a general rule: "That accused made the instrument alleged to be forged need not be proved by eyewitness but may be inferred from facts and circumstances." 26 C.J. 972, section (140) 3; State v. Puscher, 179 Mo. 140, 77 S.W. 836; State v. Gullette, 121 Mo. 447, 26 S.W. 354. "The fact that accused had received the fruits of a forged instrument, while not in itself sufficient proof that the instrument was forged by him, may when taken in conjunction with other circumstances in evidence be sufficient to warrant his conviction for forgery." Curtis v. State, 118 Ala. 125, 24 So. 111; Shope v. State, 106 Ga. 226, 32 S.E. 140. Where accused has represented himself as being the person whose signature is forged, his conviction of forgery is warranted. People v. Sharp, 53 Mich. 523, 19 N.W. 168. From these general rules, it is my opinion that the proof is sufficient to support the verdict of guilty of forgery. The proof shows that the appellant had the forged check in his possession. It is clearly shown by the testimony of the witness, C.A. Lowe, that the check was a forgery. The proof is conclusive that the appellant uttered a forged instrument, which in itself is a strong circumstance in the proof to show that the appellant made the forged instrument. The proof shows that the appellant represented himself to be the payee whose name appears on the back of the check. It is testified by the witness, Tracy Barnett, that the appellant endorsed the check.

Judges

SMITH, C.J.

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GREEN v. STATE. Corpus Juris-Cyc References: Forgery, 26CJ, section 119, p. 961, n. 56; p. 962, n. 77; section 137, p. 971, n. 73; On effect of possession of forged instrument as e

1. FORGERY. Possession of forged check, of which defendant claimed to be payee, with claim of title thereto, was prima-facie evidence that he forged it or procured it to be forged.

Possession by defendant of forged check, of which he claimed to be payee, with claim of title thereto, was prima-facie evidence that he either forged it or procured it to be forged.

2. FORGERY. Evidence held sufficient to support conviction for forgery.

In prosecution for forgery of check, evidence held sufficient to support conviction.

3. CRIMINAL LAW. Presumption is that forgery was committed at place where defendant passed forged check.

Presumption is that forgery was committed at place where defendant passed forged check to another.

SMITH, C.J.

This is an appeal from a conviction of forgery, and one of the assignments of error is that the evidence is insufficient to support the verdict.

The evidence for the state discloses that the appellant, who claims to be H.H. Kemp, gave Barnett, for value, a check by Howell on the Bank of Carthage, payable to the order of H.H. Kemp. The bank declined to pay this check, and returned it to Barnett. Afterwards the appellant gave Barnett a check on the Bank of Carthage signed by C.A. Lowe, which signature was proven to be a forgery, payable to the order of H.H. Kemp, for thirteen dollars which bore on the back thereof what purported to be the indorsement of H.H. Kemp, who the appellant claims to be.

Barnett then delivered the five dollar check to the appellant, together with the sum of eight dollars in money. After leaving Barnett's place of business, the appellant was seen to tear up the five dollar check.

The appellant's evidence was to the effect that he knew nothing of the transaction with Barnett, did not negotiate either check with him, and knew nothing of the forgery.

Possession by the appellant of the forged instrument, with claim of title thereto, is prima-facie evidence that he either forged it, or procured it to be forged. And since the jury rejected his claim that he did not pass the check to Barnett, and believed that he did so pass it, his possession thereof was left unexplained, and was therefore sufficient to warrant his conviction. 26 C.J. 961. This is but an application of the presumption of guilt from the possession of property which this court has uniformly applied in cases of larceny.

In addition thereto, the jury was warranted in taking into consideration the fact that he claimed to be the payee in the check, and to compare the signature on the back thereof, which they were warranted in believing was written by the appellant for the reason that he claimed to be H.H. Kemp, with that of the drawer of the check. The comparison of the two signatures, they being different, was, of course, of little value, and would not, of itself alone, have warranted a conviction.

The venue was sufficiently proven, for the presumption is that the forgery was committed at the place where the appellant passed the check to Barnett (26 C.J. 961), which the evidence shows was in Leake county.

Affirmed.

GREEN v. STATE. Corpus Juris-Cyc References: Forgery, 26CJ, section 119, p. 961, n. 56; p. 962, n. 77; section 137, p. 971, n. 73; On effect of possession of forged instrument as e

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