Boyd v. State, 1269S289

• Decision Date: 25 February 1971
• Docket Number: No. 1269S289,1269S289
• Citation: 24 Ind.Dec. 587,256 Ind. 22,266 N.E.2d 802
• Court: Indiana Supreme Court
• Parties: Billy BOYD, Appellant, v. STATE of Indiana, Appellee.

Page 802

266 N.E.2d 802

256 Ind. 22

Billy BOYD, Appellant, v. STATE of Indiana, Appellee.

No. 1269S289.

Supreme Court of Indiana.

Feb. 25, 1971.

Rehearing Denied April 1, 1971.

Palmer K. Ward, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., William F. Thompson, Asst. Atty. Gen., Indianapolis, for appellee.

PRENTICE, Judge.

Defendant (Appellant) was convicted of the crime of uttering a false check under the provisions of the Acts of 1905, ch. 169, § 676 (1956 Repl.) Burns' § 10--2102. His appeal is predicated upon the alleged insufficiency of the evidence and an error at law in that the trial court overruled his motion for discharge made at the close of the trial, both of which related to variances between the allegations of the affidavit and the evidence.

The affidavit charged that the defendant did '* * * utter, publish, pass and deliver to H. D. Osborne, as true and genuine, a certain false, forged and counterfeit check for the payment of money, * * *.'

"* * * said pretended check purporting to have been made and executed by

one James Stone in favor of Billy B. Boyd, which said false, forged and

counterfeit check is of the following tenor, viz:

                  FIRESIDE RESTAURANT & BAR                                                2497
                  522 East Raymond Street
                  Indianapolis, Indiana 46203
                                               May 31, 1969                                20-7
                                                                                  -------------
                                                                                            712
                 Pay to the
                 order of                     Billy M. Boyd                             $100.00
                    Hundred Dollars                 00          Dollars
                                            ------------------
                                                   100
                

American Fletcher Fireside Restaurant & Bar

National Bank &

Trust Company

Indianapolis /s/ James Stone

with intent then and there and thereby feloniously, falsely and fraudulently

to defraud the said H. D. Osborne, * * *."

From the evidence adduced at the trial, viewed most favorably to the State, it appears that the defendant entered the office of the Loyal Order of Moose, approached Laura Hannah, an office employee there, and asked her to cash a check that he had in his possession. The check was verbally identified by the witness, H. D. Osborne, as having been drawn upon the account of 'Fireside South.' The check itself, however, was subsequently identified and entered into evidence and is identical to the one reproduced in the affidavit. Miss Hannah took the check to the office of Mr. Osborne, who was at that time the Secretary and Manager of the Loyal Order of Moose. Mr. Osborne became suspicious of the check and told Miss Hannah to engage the defendant in conversation while he called the police.

Herbert Holt, the manager of the Fireside Restaurant & Bar, testified that the aforesaid exhibit, being the check the appellant attempted to cash, had previously been stolen from the Fireside Restaurant. He further stated that James Stone, whose signature appeared upon the check on behalf of the purported maker, was not an employee of the restaurant or authorized to sign its checks.

Officer Edward Foley of the Indianapolis Police Department testified that he had talked to the defendant following the latter's arrest and that at that time the defendant told Officer Foley that two men had burglarized the Fireside Restaurant and that certain checks were taken from it. Officer Foley further related that the defendant stated that he was given one of the checks by one of the two burglars and that he knew the check was 'no good' when he received it, and further that he did, in fact, present the check at the Moose Lodge knowing the same to be 'no good.'

Subject to defendant's contention of material and fatal variances between the affidavit and the proof, which we shall hereinafter dispose of, we find that the verdict is sustained by sufficient evidence.

Defendant maintained that the discrepancy between H. D. Osborne's testimony that the check was drawn upon the account of 'Fireside South' and the facsimile appearing in the affidavit showing it to be drawn upon the account of 'Fireside Restaurant & Bar' was a material and fatal variance. This position overlooks, or ignores, the subsequent introduction of the uttered check into evidence, which precisely matched the facsimile in the affidavit. The most that might be said is that Mr. Osborne's testimony on this point was in conflict with the exhibit, and even here it is logical to assume that 'Fireside South' was a customary reference to 'Fireside Restaurant & Bar.'

Defendant's remaining bastion is that the affidavit charges him with intent to defraud H. D. Osborne, whereas the...