Angel v. State

Decision Date14 February 1973
Docket NumberNo. 1--772A27,1--772A27
Citation292 N.E.2d 268,155 Ind.App. 242
PartiesGeorge Donald ANGEL, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

Malcolm G. Montgomery, Evansville, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Harry L. Sauce, III, Deputy Atty. Gen., for plaintiff-appellee.

LOWDERMILK, Judge.

Defendant-appellant was convicted by a jury of the offense of uttering a forged instrument, to-wit: a check. The trial court pronounced sentence and appellant timely filed his motion to correct errors, which was overruled by the court and this appeal follows:

The facts are that when Beulah Gibson went to her mailbox on November 3, 1971, to pick up her monthly social security check, she found that her mailbox had been broken into and her check was missing. She testified that the postman had stated that he had left her social security check in her mailbox on the day in question. She further testified that she had not endorsed the check; had not signed it; had not given anyone permission to cash it; had not given it to anyone or authorized anyone to take it; and she was not related to the defendant and was not acquainted with him.

On November 3, 1971, the defendant-appellant attempted to cash a social security check in the amount of $109.00, with the payee being Beulah Gibson. The check had an endorsement on the back by 'Beulah Gibson', but the teller asked the defendant to endorse the check also. Defendant endorsed the check with the last name of 'Gibson' but the first name was uncertain. Defendant's name was George Donald Angel. When asked by the teller to show identification, defendant indicated that he could not produce identification at that time. The teller, Annabelle Helfrich, identified him, in court, and films taken from cameras at the bank were introduced into evidence which showed defendant at said teller's window.

Paggy E. Savage, the secretary of the branch bank, West Side Branch of Citizens National Bank, testified that she saw the defendant in the bank on November 3, 1971, trying to cash the check.

Mike McCoy, an employee of said branch bank, was summoned by the teller, Miss Helfrich, to aid in the processing of the customer, defendant. He testified that defendant attempted to produce identification by taking Mr. McCoy outside, purportedly to meet Beulah Gibson, who the defendant claimed was his grandmother. However, defendant was not able to produce said 'grandmother' and left Mr. McCoy outside the bank. Mr. McCoy positively identified the defendant as the person who attempted to cash the check.

Appellant's motion to correct errors, excluding the memorandum thereto, is in the words and figures as follows, to-wit:

'MOTION TO CORRECT ERRORS

The defendant, George Donald Angel, moves the Court for the correction of errors occurring prior to and during the trial of the within cause as follows:

1.

The verdict of the jury is not supported by sufficient evidence upon all necessary elements of the offense for which the defendant was convicted and is contrary to the evidence.

2.

The verdict of the jury is contrary to law. * * *

3.

Uncorrected error of law occurring and properly raised in the trial of the proceedings, in this, to-wit:

The Court erred in overruling defendant's motion for a mistrial, and the defendant was denied a fair trial by reason that the mention of a 'mug shot' unduly prejudiced the defendant.

* * * (questions, objections, remarks and answers omitted)

4.

Uncorrected error of law occurring and properly raised in the trial of the proceedings, in this, to-wit:

The Court erred in refusing to give to the jury at the request of the defendant, defendant's instruction number one (1) which was tendered and requested by the defendant, and is in the words and figures as follows:

'INSTRUCTION NO. 1

The Court instructs you that a person commits Theft when he knowingly:

'* * * Obtains by deception control over property of the owner or a signature to any written instrument. * * *"

5.

Uncorrected error of law occurring and properly raised in the trial of the proceedings, in this, to wit:

The Court erred in refusing to give to the jury at the request of the defendant, defendant's instruction number two (2) which was tendered and requested by the defendant, and is in the words and figures as follows:

'INSTRUCTION NO. 2

The Court instructs you that a person commits Theft when he knowingly:

'* * * Obtains control over stolen property knowing the property to have been stolen by another, which knowledge may be inferred from the possession of such stolen property, wherever the Theft may have occurred. * * *"

6.

Uncorrected error of law occurring and properly raised in the trial of the proceedings, in this, to-wit:

The Court erred in giving to the jury and reading to the jury State's Instruction Number One (1), which instruction and the defendant's objection thereto are as follows:

'STATE'S INSTRUCTION NO. 1

Intent to commit a specific criminal act may be presumed from the voluntary commission of the act. One who does an act in violation of the law is presumed to have done it willfully and the lack of intention to violate it will not release him from responsibility.

'DEFENDANT'S OBJECTION

Defendant would object to State's Instruction No. 1 for the following reasons:

No. 1: It doesn't adequately state the law of the State of Indiana. No. 2: It is misleading and confusing to the jury. No. 3: 'Specific intent,' which is necessary before the instruction would be proper.'

7.

Uncorrected error of law occurring and properly raised in the trial of the proceedings, in this, to-wit:

The Court erred in giving to the jury and reading to the jury, State's Instruction No. Four (4), which instructions and the defendant's objection thereto are as follows:

'STATE'S INSTRUCTION NO. 4

The 'uttering' of a forged instrument is accomplished when a person presents the same for payment.

'DEFENDANT'S OBJECTION

The defendant would object to State's Instruction No. 4 for the following reasons: It is confusing and misleading to the jury. It misstates the law in that the defendant must have knowledge that the instrument was forged. It does not properly state the law and is unduly prejudicial to the defendant.'

WHEREFORE, by reason of the prejudicial and harmful errors herein, the defendant asks that a new trial be granted.'

Appellant first contends that the verdict was not supported by sufficient evidence and was contrary to law. Appellant contends that he was not proved guilty beyond a reasonable doubt, in that the check was not proved to be owned by Beulah Gibson and there was no evidence that the check was forged or that defendant knew that it was forged.

The appellee, State of Indiana, contends that here was sufficient evidence to sustain the conviction of uttering a forged instrument. Appellee points out that this court should look only to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. See McMinoway v. State (1972), Ind.App., 283 N.E.2d 553. This court cannot weigh the evidence, but can only examine the evidence to determine whether there was sufficient evidence to support the verdict of the jury or the finding of the trial court. Yeley v. State (1972) Ind.App., 286 N.E.2d 183, 32 Ind.Dec. 317.

Appellee contends that the evidence most favorable to the State shows that the check of Beulah Gibson was stolen, and that the defendant presented a check, drawn to Beulah Gibson, to the bank and requested payment; that Beulah Gibson had not endorsed her name on the back of the check but that her name had been endorsed thereon when it was presented to the bank teller for payment; that the defendant-appellant endorsed the name of Gibson in the presence of the teller, but could not furnish identification so she would honor the check; and there was sufficient evidence to sustain the conviction.

Considering the evidence most favorable to the State and all reasonable inferences to be drawn therefrom, it is our opinion that there was sufficient evidence to support the jury's verdict and judgment of the trial court thereon.

Appellant next contends that reversible error was committed when the court gave to the jury State's tendered Instructions Numbered 1 and 4. Appellant contends that these instructions are not correct statements of the law and were confusing to the jury.

State's Instruction Number 1, which was given to the jury over defendant's written objection, reads as follows:

'Intent to commit a specific criminal act may be presumed from the voluntary commission of the act. One who does an act in violation of the law is presumed to have done it willfully and the lack of intention to violate it will not release him from responsibility.

Appellant admits that the first sentence is technically correct, but objects to the second sentence and cites as authority 8 I.L.E. Criminal Law § 10, p. 85, as follows:

'Except as otherwise provided by statute, an overt act, to constitute a crime, must be accomplished by a criminal intent, and a crime is not committed if the mind of the person doing the act is innocent. Intent or mens rea stands as an essential element of crime . . .'

Appellant contends that one cannot violate the law without criminal intent.

The State contends that the Instructions were correct statements of the law, and, viewed as a whole, did not confuse the jury and were not erroneous.

Appellee also cites 8 I.L.E. Criminal Law § 10, on p. 86, as follows:

'A criminal intent to commit a specific criminal act may be presumed from the voluntary commission of the act. One who does an act in...

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11 cases
  • Jackson v. State
    • United States
    • Indiana Supreme Court
    • April 23, 1984
    ...Ind.App. 570, 575, 369 N.E.2d 434, 437; Bayer v. State, (1973) 158 Ind.App. 531, 540, 303 N.E.2d 678, 683-84; Angel v. State, (1973) 155 Ind.App. 242, 250, 292 N.E.2d 268, 273. We find no evidence that the reference placed the Defendant in a position of grave peril to which he should not ha......
  • Duling v. State, 1--376A41
    • United States
    • Indiana Appellate Court
    • September 14, 1976
    ...his motion to correct errors, or in his brief, that there was any harm done to him by the giving of Instruction No. 20. Angel v. State (1973), Ind.App., 292 N.E.2d 268. He does not state that it misled the jury, or that it produced confusion. The designation of the particular felony is not ......
  • Bayer v. State
    • United States
    • Indiana Appellate Court
    • November 20, 1973
    ...of the term 'mug shot' does not constitute reversible error. See Moore v. State (1973 Ind.Ct.App.), 298 N.E.2d 17, and Angel v. State (1973 Ind.Ct.App.), 292 N.E.2d 268. Applying the standards of White, it is apparent that Mrs. Brummett and Flora each gave clear, convincing and consistent t......
  • Williams v. State
    • United States
    • Indiana Appellate Court
    • August 27, 2008
    ... ...         England v. State, 249 Ind. 446, 448-49, 233 N.E.2d 168, 170-71 (1968); see also Bush v. State, 251 Ind. 84, 87-88, 237 N.E.2d 584, 586-87 (1968); Angel v. State, 155 Ind.App. 242, 246-49, 292 N.E.2d 268, 271-72 ... 892 N.E.2d 672 ... (1973) (discussing jury instructions on intent to defraud); 36 Am.Jur.2d Forgery § 53 (2008) ("from the fact of uttering and passing the instrument itself ... the jury can properly find the specific intent to ... ...
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