Bigbee v. State

• Decision Date: 30 June 1977
• Docket Number: No. 2-275A43,2-275A43
• Citation: 173 Ind.App. 462,364 N.E.2d 149
• Parties: William T. BIGBEE, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

Page 149

364 N.E.2d 149

173 Ind.App. 462

William T. BIGBEE, Appellant, v. STATE of Indiana, Appellee.

No. 2-275A43.

Court of Appeals of Indiana, Second District.

June 30, 1977.

Rynearson & Rumple, Paul V. Rumple, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Walter F. Lockhart, Deputy Atty. Gen., Indianapolis, for appellee. SULLIVAN, Judge.

Bigbee was tried by jury and was convicted of theft. ¹ The trial court entered judgment on the verdict and sentenced Bigbee to imprisonment for an indeterminate period of one (1) to ten (10) years as required by I.C. 35-17-5-12 (Burns Code Ed.1975). The manner in which Bigbee was charged and tried, the manner in which the jury was instructed, and the form of the verdict demonstrate that all concerned viewed the offense as one involving property of $100 or more in value, rather than the offense described in I.C. 35-17-5-3(1) (f) which covers the obtaining of property by threat, without regard to value. The latter offense, if the threat is of infliction of physical harm, carries the same penalty as theft of property having value of $100 or more. Compare I.C. 35-17-5-12(5)(g) with I.C. 35-17-5-12(3).

Bigbee's belated appeal presents two issues for our review: (1) whether there was sufficient evidence to establish that the property, a bearer instrument, had a value of $100 dollars or more; and (2) whether there was sufficient evidence connecting Bigbee with the theft to support his conviction as an accessory. ² We find the evidence to be sufficient in both respects and affirm the judgment.

The trial record establishes that Bigbee's ally, McGraw, made threatening telephone calls demanding money from Mr. and Mrs. Crowder. Mrs. Crowder testified that she received the first call on the afternoon of Wednesday, August 23, 1972. The male caller threatened to take her life unless she gave him $400 dollars. Immediately thereafter, she contacted her husband at work and he notified the police. Mr. Crowder then came directly home and received all the following telephone calls. The police, having already arrived at the Crowder residence, listened on an extension phone to Mr. Crowder's subsequent conversations with the caller. On their advice, Mr. Crowder agreed to leave the designated money at a drop location specified by the caller.

Mrs. Crowder wrote and signed a check, payable to "Cash", in the amount of $400 dollars. Mr. Crowder testified that there was enough money in the bank to cover the check, but that "(he) put a hold on (the) check after it was written so that it could not be cashed".

Mrs. Crowder's check was placed in a paper sack together with shredded newspaper, "so it would look like there was a lot of money in it". With the police following in another vehicle, Mr. Crowder then drove to the designated drop location and left the sack. When some time had passed but no one had come to pick the sack up, the police retrieved it and returned to the Crowder residence to await another telephone call. The same caller as before phoned several times between 10:00 and 11:30 P.M., before he finally settled on a payment of $200 dollars to be dropped at a different location.

Mr. Crowder took the same brown paper sack containing his wife's check to the new drop site.

McGraw arrived soon afterwards and picked up the sack. At that point, he was apprehended by the police officer who had the location under surveillance. Following a conversation with McGraw, the police proceeded to Bigbee's home and arrested Bigbee.

According to his signed statement, Bigbee first learned of McGraw's plan to extort money at approximately 6:30 7:00 P.M. that evening. McGraw told Bigbee that he got the idea from a television show; that he had already called the "guy" and demanded money; and that he (McGraw) was going to call back.

Bigbee, driving his car, picked up two girls with whom he and McGraw drove around that evening. At one point, according to the statement McGraw made a telephone call and then directed Bigbee to drive to the first drop location. Upon McGraw's request, Bigbee drove past the drop location several times, then let McGraw off, and waited with the car at a nearby intersection. McGraw returned and told Bigbee that he could not find the money and would have to scare the couple some more. Bigbee drove McGraw to a telephone booth and gave him a dime to make the call ("he wanted a dime to make a call, so I gave it to him, and he made the call"). McGraw wanted to look for the money one more time, so Bigbee drove him back to the drop location. McGraw still could not find the money and told Bigbee that he wanted to call the man again.

Bigbee then drove to McGraw's house where he listened on an extension while McGraw telephoned the Crowders. Since McGraw's mother would not let him leave the house, McGraw asked Bigbee to get the money for him. In the statement Bigbee describes an aborted attempt to pick up the money as follows:

"I walked by the church, and McGraw told me what kind of a car the man would be in, and this type of car was there, and a man motioned for me to come over, but I just kept walking."

Bigbee then returned directly to his own home. When McGraw called and tried to get him to pick up the money, Bigbee refused. Bigbee's statement concludes:

"(McGraw) told me that he was going to sneak out, and get it for himself. The next thing I knew, the police was at my door."

I.

THERE WAS SUFFICIENT EVIDENCE FOR THE JURY TO CONCLUDE THAT

THE CHECK HAD A VALUE OF $100 OR MORE

Defendant argues that he could not have been guilty of theft of property worth $100 or more because a check is not an assignment of funds, see, I.C. 26-1-3-409 (Burns Code Ed.1974), and because a stop payment order was issued on the check. In essence, defendant disputes the sufficiency of the evidence to support the jury's finding that the check had a value of at least $100 dollars.

Contrary to the common law, our Offenses Against Property Act, I.C. 35-17-5-1, et seq. (Burns Code Ed.1975) (hereinafter referred to as "OAPA"), permits a check to be the subject of theft. ³ however, Indiana unlike some states, does not have a statute setting a standard by which the value of a stolen check may be measured. ⁴

We hold that the amount written upon the face of a negotiable bearer instrument is competent evidence relating to its value. See, Tillery v. State (1968) 44 Ala.App. 369, 209 So.2d 432; Felkner v. State (1958) 218 Md. 300, 146 A.2d 424; State v. McClellan (1909) 82 Vt. 361, 73 A. 993; 52(A) C.J.S. Larceny § 60(2); 50 Am.Jur.2d Larceny, § 46. Cf. People v. Marques (1974) 184 Colo. 262, 520 P.2d 113.

Our holding comports with the general rule of valuation which utilizes market value as the criterion. Keel v. State (1973) 261 Ind. 396, 304 N.E.2d 304. The rule is concerned with the amount which a willing buyer would pay to a willing seller. See, Southern Ind. G & E Co. v. Gerhardt (1961) 241 Ind. 389, 393, 172 N.E.2d 204, 205; United States v. 344.85 Acres of Land (7th Cir. 1967) 384 F.2d 789, 791. With regard to checks, notes, and other commercial instruments, the concept of market value is embraced within the term, "negotiability".

The check with which we are concerned was a bearer instrument, ⁵ and therefore could have been negotiated ⁶ by McGraw to a third party notwithstanding McGraw's status as a thief. See, White & Summers, Handbook of the Law Under the Uniform Commercial Code 459, 494 (1972); I.C. 26-1-3-202(1) (Burns Code Ed.1974). Moreover, McGraw's status would not affect a subsequent transferee's ability to transfer title to the instrument. See, White & Summers, supra, at 506.

Those who deal in negotiable instruments rely upon the apparent liabilities created upon the face of such instruments, and commercial affairs are conducted accordingly. White & Summers, supra, at 399, 456. We would be inattentive to established commercial principles if we did not acknowledge, for the purposes of the "OAPA", that the amount written upon the face of a bearer instrument may be evidence of its value.

Assuming, arguendo, that the lack of delivery by Mrs. Crowder to McGraw contemplated by I.C. 26-1-3-202(1) and I.C. 26-1-1-201(14) (Burns Code Ed.1974), would have prohibited McGraw from becoming a holder, nonetheless, this fact would not have precluded him from effectively transferring title to the instrument. A bearer instrument, unlike an instrument made out to the order of a particular person, need not be indorsed by a holder before title may be transferred. Cf. I.C. 26-1-3-202(2) (Burns Code Ed.1974). Title to a bearer instrument may be transferred when a taker simply acquires possession of the instrument. See, White & Summers at 458, 497. Consequently, whether McGraw was a holder is not relevant to the question of the negotiability and transferability of the check.

Nor is a check transformed into a non-negotiable instrument merely because it does not constitute an assignment of funds or because a stop payment order was issued. Compare, I.C. 26-1-3-104(1), supra, with I.C. 26-1-4-403(1) (Burns Code Ed.1974) and I.C. 26-1-3-409(1), supra.

Suffice it to say, the trier of fact may consider the check's negotiability along with all the other evidence which bears upon the question of value. We note in this respect that there was evidence regarding a stop order. The record indicates that Mrs. Crowder wrote the check, payable to "Cash", and signed her name. According to Mr. Crowder's testimony, there was enough money in the bank to cover the check. Mr. Crowder also testified that he "put a hold" on the check "after it was written so that it could not be cashed".

Such evidence does not lead inexorably to the conclusion, opined by Judge White in his dissent, "that payment had been stopped that the check could not be cashed". Mr. Crowder's testimony is inconclusive in several respects. Mrs. Crowder's signature permits a reasonable inference that she wrote the check on her account. There is no...