HATTEN v. STATE

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Docket Number

No. 27099.

Attorney(S)

G.W. Hosey, for appellant. The state asked for and was granted only one instruction and the instruction was upon the second count, but the record is silent as to what became of the first count. Both counts were given to the jury under the one instruction and the record in its silence as to this particular point is correct, and this is a fatal error for the evidence fails to show that the defendant had any connection with the alleged forgery. The court erred in granting the first and only instruction for the state. This instruction assumes that the endorsements on the back of said check were forged. It fails to instruct the jury that if they believe beyond a reasonable doubt that the check in question was forged. The instruction is also bad because it refers to the indictment for the essential elements of the crime. Another great trouble with this instruction is that it disregards the intent necessary to be alleged and proven, and this is a fatal error. It is evident that this indictment was found under sec. 1192, Code of 1906, under which section it must be charged, proven, and the jury must believe from the evidence beyond a reasonable doubt, that the person must have uttered or published as true and with intent to defraud, a forged instrument, knowing the same to be forged. The instruction fails to give any one of the necessary and essential elements which go to make the crime. May v. State, 115 Miss. 708; Griffin v. State, 96 Miss. 309, 51 So. 466; France v. State, 35 So. 313; Agee v. State, 113 Ala. 52, 21 So. 207; Ivy v. State, 84 Miss. 265; Rutherford v. State, 100 Miss. 832, 57 So. 224, 19 Cyc. 1427. Rufus Creekmore, Assistant Attorney-General, for the state. The trial court did require the state to elect, and this election was made by the state. The only instruction which was requested by the state had reference to the second count in the indictment and instructed the jury that if certain facts be proven it was their duty to convict the defendant on the second count. But even though the court had not required in the first instance that the state elect, it certainly cannot be said that the defendant has been prejudiced. The objections which counsel make to the instruction are that it assumes that the endorsements on the check were forged, that it disregards the essential elements of the crime, especially the intent necessary to be proven, and that it refers to the indictment for the essential elements of the crime. It is true that in May v. State, 115 Miss. 708, 76 So. 636, an instruction which attempted the statutory definition of the offense of forgery was held erroneous because it omitted to state that the check was uttered "with intent to defraud." This case was followed by Williams v. State, 128 Miss. 271, 90 So. 886; and McKinney v. State, 143 Miss. 38, 108 So. 282. It will be observed, however, that in all of the above-mentioned cases the instruction attempted to define the statutory crime of forgery, and was erroneous because it left out the intent to defraud. In the case at bar the language of the instruction is that "Joe Hatten did falsely, fraudulently, and feloniously utter and publish." The uttering of a check fraudulently, which is the language of the instruction here, is equivalent to the uttering of a check with the intent to defraud. In Upton v. State, 143 Miss. 1, 108 So. 287, the court held that an instruction which was otherwise erroneous was not cured by reference to the indictment, and this is the correct rule. In the case at bar, however, this instruction does not need reference to the indictment to make it correctly state the law. The rule in the Upton case, therefore, is not applicable here. That part of the instruction which refers to the indictment may be treated as surplusage. See Dean v. State, 85 Miss. 40; and Sullivan v. State, 92 Miss. 826, 46 So. 248.

Judges

SMITH, C.J.

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HATTEN v. STATE. Corpus Juris-Cyc. References: Criminal Law, 17CJ, p. 287, n. 47; p. 368, n. 5; Possession of, with attempt to sell note as presumption of forgery, see 12 R.C.L. 164; 7 R.C.L. Supp. 379.

1. CRIMINAL LAW. State's failure to elect between counts held harmless, the verdict being presumed in response to only instruction granted state, which was based on one count only.

Even if the state should have elected between the counts, defendant was not prejudiced by its failure not to do so, the only instruction granted the state being based on the count charging the uttering of a forged instrument, and it being presumed, in the absence of anything to the contrary, that the verdict was in response to that instruction.

2. CRIMINAL LAW. Failure to instruct that forged check must have been uttered with intent to defraud held not prejudicial ( Supreme Court Rule 11).

That instruction did not state that for defendant to be guilty he must have uttered the forged check with intent to defraud, held under Supreme Court Rule 11 not ground for reversal, it not only not appearing from the record to have resulted in substantial prejudice to defendant, but there being a presumption from defendant's possession of the forged check, and his collection of the money called for by it, that he knew of the forgery and intended by the collection of the money to defraud.

SMITH, C.J.

The appellant was tried and convicted on an indictment containing two counts, the first charging him with forgery, and the second with uttering a forged instrument. The forgery alleged consisted in the unauthorized writing on the back of a bank check of the name of the payee therein and of another. An objection here raised to the indictment is so wholly without merit that it will not be specifically set forth.

The appellant was not represented by counsel in the court below.

At the close of the evidence the court directed the state to elect on which count it would ask for a conviction. The record does not disclose that any formal election between the counts was thereafter made by the state, but the only instruction requested by it is as follows:

"The court instructs the jury, for the state, that if you believe from the evidence in the case beyond a reasonable doubt that the defendant, Joe Hatten, did falsely, fraudulently, and feloniously utter and publish said check in question, as charged in the second count of the indictment, then it is your sworn duty to convict the defendant as charged in the second count of the indictment."

The evidence discloses that the appellant was a porter for a hotel in Laurel run by one Smith; that one of his duties was to go to the post office daily and bring therefrom mail for the hotel and its guests. He was frequently sent by Smith to the First National Bank of Laurel to cash checks payable to guests of the hotel indorsed by the payee therein and by Smith. On June 7, 1927, he entered the bank, stopped for a few moments at a writing desk, wrote something, and immediately thereafter presented to the teller of the bank a check on the First National Bank, Memphis, Tenn., payable to G.H. Terry, for eighty-one dollars and thirty-eight cents, signed by A.S. Douglas, district manager, with Terry's name and that of Smith indorsed on the back thereof. The money called for by the check was paid to the appellant, and it does not appear what disposition he thereafter made of it. Terry testified that the check was one to him from his employer; that he had not received it, had not indorsed it, had not authorized any one to indorse it for him, and had not received the money called for thereby. How the check left the hands of the drawer or how the appellant obtained it does not appear. Smith's name was shown to be a forgery. The forged signatures were said by a witness, who compared the two, to resemble the appellant's handwriting. The appellant introduced no evidence.

Assuming that the state should have elected on which count it would ask for a conviction, its failure so to do was not prejudicial to the appellant; for, as nothing appears to the contrary, we must presume that the verdict was in response to the only instruction granted the state, and that instruction was based on the count charging the defendant with uttering a forged instrument.

We will assume, as the appellant contends, that the instruction is incomplete on its face in that it does not advise the jury that the appellant must have uttered the check "with intent to defraud" in order to be guilty; and, as held in Upton v. State, 143 Miss. 1, 108 So. 287, this error was not cured by the reference in the instruction to the second count in the indictment. Nevertheless, the judgment of the court below must be affirmed.

An error that justifies a reversal is such only as affirmatively appears from the record to have resulted in substantial prejudice to the appellant. Rule 11 of this court, as construed in Jones v. State, 104 Miss. 871, 61 So. 979, L.R.A. 1918B, 388. Not only does such prejudice not here appear, but, on the contrary, the verdict is manifestly correct.

The possession by the appellant of the forged check and the collection by him of the money called therefor raises a presumption that he knew of the forgery, and intended by the collection of the money to defraud (26 C.J. 961), which presumption is not weakened by anything that appears from the evidence. And, moreover, without this presumption it is hardly probable that the jury would, in any event, have rendered any verdict other than one of guilty.

Affirmed.

HATTEN v. STATE. Corpus Juris-Cyc. References: Criminal Law, 17CJ, p. 287, n. 47; p. 368, n. 5; Possession of, with attempt to sell note as presumption of forgery, see 12 R.C.L. 164; 7 R.C.L. Supp. 379.

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