Bailey v. State

• Decision Date: 14 July 1982
• Citation: 450 A.2d 400
• Parties: Billie BAILEY, Defendant Below, Appellant, v. The STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 400

450 A.2d 400

Billie BAILEY, Defendant Below, Appellant, v. The STATE of Delaware, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: July 14, 1982.

Decided: Sept. 7, 1982.

Upon appeal from Superior Court. Affirmed in part and remanded in part.

Dennis A. Reardon (argued), Asst. Public Defender, Dover, for defendant-appellant.

Dana C. Reed (argued), Deputy Atty. Gen., Dover, for plaintiff-appellee.

Before McNEILLY, QUILLEN and MOORE, JJ.

QUILLEN, Justice:

Several issues have been raised in this appeal. We divide them into two groups, those relating to the defendant's conviction of forgery in the second degree and those relating to the defendant's sentence as an habitual criminal.

I

The defendant was convicted of forgery in the second degree. In pertinent part, our forgery statute, 11 Del.C. § 861, reads as follows:

"(a) A person is guilty of forgery when, intending to defraud, deceive or injure another person, or knowing that he is facilitating a fraud or injury to be perpetrated by anyone, he:

(1) Alters any written instrument of another person without his authority; or

(2) Makes, completes, executes, authenticates, issues or transfers any written instrument which purports to be the act of another person, whether real of fictitious, who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case or to be a copy of an original when no original existed; or

(3) Possesses a written instrument, knowing that it was made, completed or altered under circumstances constituting forgery."

If the written instrument is a check, the crime is forgery in the second degree, a class E felony.

As to the pertinent facts, the defendant went to a liquor store with a check purportedly endorsed by the payee, one June Davis, but in fact with the endorsement forged by one Daniel Pregent, who had stolen the check. Pregent requested the defendant to cash it. The clerk at the liquor store was handed the check but handed the check back to the defendant. The clerk did not cash it but he did notice Ms. Davis' purported endorsement. The defendant later deposited the check in his own account. But he is charged for his act at the liquor store, not the bank.

Two matters are raised with regard to defendant's guilt under this factual sequence. First, defendant contends there was insufficient proof of "intending to defraud". Second, the question has arisen in the Court's mind as to whether the defendant "transfer[red]" the check as that term was contemplated by the draftsmen of the statute.

As to the first matter, the question is simply evidentiary. A detective testified as to out-of-court statements by the defendant. Initially, the following exchange occurred as part of the detective's examination:

"Q. Did [the defendant] say who signed June Davis' name?

A. All he said was, 'Danny.' He said, 'I did not sign her name. All I signed was my name.' "

Later the detective testified in response to another question:

"Q. What did he state concerning Danny?

A. He said, 'Danny is the one who signed June Davis' name.' "

A third question and answer were as follows:

"Q. Detective Cox, did Bailey tell you that Danny signed it at the bank or up at the liquor store?

A. He didn't tell me either. He just said, 'Danny is the one who signed her name.' "

Given the above testimony, there was sufficient evidence to show that the defendant knew the payee's endorsement was forged and sufficient evidence for the jury to infer that the defendant intended to defraud the liquor store when he tried to cash the check.

The second question with regard to the statutory word "transfers" is a legal one of definition. There is no dispute as to the pertinent facts. The check was tendered but the tender was rejected. The check was not cashed. It was returned. Under these circumstances, did the defendant "transfer" the check?

There is no statutory definition of the word "transfers" as it appears in § 861. Thus, it should be defined in "its commonly accepted meaning". The verb "transfer" has been defined in two common ways: (1) "[t]o convey or shift from one person or place to another" or (2) "[t]o make over the possession or legal title of to another". The American Heritage Dictionary of the English Language, New York 1969. In one sense, the check in this case was shifted from one person to another and then back again. But in no sense was there a transfer in terms of passing of title.

Our first reaction was that the word "transfer" would refer to a completed cashing of the check. Indeed this would be the normal commercial meaning. See the Uniform Commercial Code, 6 Del.C. § 3-201(1). But, upon examination, we think the physical delivery of the check for cashing is sufficient under the forgery statute to constitute transferring the instrument.

In the first place, the Criminal Code Commentary on § 861 specifically says: "No actual injury or loss need result from any of the acts for the crime to be completed." Emphasis added. Delaware Criminal Code with Commentary 1973, p. 296. Thus, there was an express recognition by the draftsmen of the forgery statute that a cashing of the check was not necessary.

In the second place, the Commentary summarizes the three subsections of § 861 as follows:

"The criminal act may be of three sorts: (1) alteration of another person's written instruments, (2) making or uttering a written instrument, purporting it to be what it in fact is not, either in respect to its signer, the time, place, or sequence of its execution, or its authenticity, and (3) possession of any forged instrument knowing it to be forged."

It seems to us important that the draftsmen reduced the statutory language in subsection 861(a)(2) from "[m]akes, completes, executes, authenticates, issues or transfers" to "making or uttering". With regard to forged instruments, the word "utter" has a clear meaning. "A forged instrument is uttered when it is offered to another as genuine, without regard to whether it is so accepted." 4 Wharton's Criminal Law (14th ed. 1981) § 515, p. 153. "A person is guilty of uttering a forged instrument ... when he presents a forged check for payment ...." Id. at 154. Our own case law echoes the general authority:

"To 'utter' ordinarily means to declare or assert directly or indirectly by words or actions that a thing offered (as an instrument) is genuine or good; * * to make use of, to offer; to pass off; * * to put forth; to put in circulation; to put out. 66 C.J. 382; see also State v. Anderson, 1 Boyce 135, 74 A. 1097; Web.New.Inter.Dict.

Usually, the mere offer of a check to a person is, therefore, to utter it, whether it be accepted by that person, or not. People v. Caton, 25 Mich. 388; Girdley v. State, 161 Tenn. 177, 29 S.W.2d 255."

State v. Vandenburg, Del.Gen.Sess., 2 A.2d 916, 921 (1938). See also the jury charge of Judge Woolley in State v. Anderson, Del.Gen.Sess., 74 A. 1097, 1099 (1910). In addition to the Commentary's use of the word "utter" as a summary verb, there is nothing in the tenor of the comment to suggest that there was any intent to restrict the concept of forgery. To the contrary, the Commentary on § 550-52 suggests an intent to paint with a broader brush than the prior Delaware law. See particularly the definition of "written instrument" in § 552.

Finally, it appears that § 550 had its source in the Model Penal Code and the former provisions of the New York Penal Code. See Proposed Delaware Criminal Code (1967), Appendix C, p. 502. Unfortunately the section was not drawn as ironclad as the Model Penal Code which specifically included a section on uttering forged writings. See Model Penal Code and Commentaries, (American Law Institute 1980), Part II, § 224.1(c), p. 281. But the history shows that the word "utter" in an early draft was defined "to mean to 'issue, authenticate, transfer, publish, or otherwise give currency to a forged writing or object.' " Id. at 301. Thus it is understandable that the draftsmen of our statute equated the final verbs used in our statute with the concept of uttering.

In view of the above considerations, we think the crime of forgery has been committed in that the delivery of the check to the liquor store clerk for cashing constituted a transfer.

II

The remaining claims of error relate to the sentencing of the defendant as an habitual criminal. See the recent review of our statute in Oney v. State, Del.Supr., 446 A.2d 389 (1982). For present purposes, the applicable habitual criminal statute subsection, 11 Del.C. § 4214(a), reads in pertinent part:

"(a) Any person who has been 3 times convicted of a felony, ... and who shall thereafter be convicted of a subsequent felony ... is declared to be an habitual criminal, and the court in which such fourth or subsequent conviction is had, in imposing sentence, may, in its discretion, impose a life sentence upon the person so convicted."

The procedure is set out in 11 Del.C. § 4215(b):

"If, at any time after conviction and before sentence, it shall appear to the Attorney General or to the Superior Court that, by reason of such conviction and prior convictions, a defendant should be subjected to § 4214 of this title, the the Attorney General shall file a motion to have the defendant declared an habitual criminal under § 4214 of this title. If it shall appear to the satisfaction of the Court at a hearing on the motion that the defendant falls within § 4214 of this title the Court shall enter an order declaring the defendant an habitual criminal and shall impose sentence accordingly."

In order to put the sentencing in this case in factual perspective, it should be noted initially that the sentencing occurred on June 22, 1979, approximately one month after a double murder in Kent County. The defendant had been charged in May 1979 with this double murder and was indicted on these new offenses on July 2, 1979. These events help explain...