Beck v. State, 29587

• Decision Date: 24 April 1958
• Docket Number: No. 29587,29587
• Citation: 149 N.E.2d 695,238 Ind. 210
• Parties: Gilbert BECK, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 695

149 N.E.2d 695

238 Ind. 210

Gilbert BECK, Appellant, v. STATE of Indiana, Appellee.

No. 29587.

Supreme Court of Indiana.

April 24, 1958.

Ferdinand Samper, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., and Merl M. Wall, Deputy Atty. Gen., for appellee

ACHOR, Judge.

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 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 matter of law, determined that the jury could not, as reasonable men, have been convinced of accused's guilt beyond a reasonable doubt. Baker v. State, Ind.1956, 138 N.E.2d 641; Penn v. State, Ind.1957, 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.) ¹ is an offense necessarily included within the charge of uttering a forged instrument (§ 10-2102, Burns' 1956 Repl.). ² 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...