Bullock v. Com.
| Decision Date | 12 October 1964 |
| Citation | 138 S.E.2d 261,205 Va. 558 |
| Parties | James R. BULLOCK v. COMMONWEALTH of Virginia. |
| Court | Virginia Supreme Court |
Herbert S. Reid, Jr., Calvin H. Childress, Norfolk, for plaintiff in error.
D. Gardiner Tyler, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., on brief), for defendant in error.
Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, WHITTLE, I'ANSON and CARRICO, JJ.
James R. Bullock was charged in a two-count indictment with forging the names of Daniel Bigelli and Frances Bigelli as makers of a promissory note in the sum of $1,596, dated January 30, 1962 and payable to the order of Seaboard Citizens National Bank of Norfolk, and with uttering and attempting to employ the note, knowing that the purported signatures of the makers thereto were forgeries. (Code, § 18.1-96, as amended.) He was found guilty by a jury on both counts and his punishment fixed at confinement in jail for twelve months on each count. To review the judgment entered on that verdict we granted the defendant a writ of error.
In the assignments of error for which proper foundation was laid in the court below, the defendant contends that the lower court erred in, (1) refusing to strike the Commonwealth's evidence because of the variation between the allegations in the indictment and proof offered in support thereof; (2) admitting evidence of similar offenses committed by him; (3) granting Instruction C-2 at the request of the Commonwealth; and (4) refusing to strike the evidence of the Commonwealth and set aside the verdict because of its insufficiency to sustain a conviction.
The facts are undisputed. In January, 1962, and for some time prior thereto, the defendant was an automobile dealer engaged in the sale of used automobiles in the city of Norfolk. He operated through the Heath Auto Sales, Incorporated, of which he was the president and owner. For some time he had dealt with the Berkley branch of the Seaboard Citizens National Bank of Norfolk. On January 30, 1962, the Heath Auto Sales, Incorporated, presented to an officer of the bank a promissory note purported to be signed in blank by Daniel Bigelli and Frances Bigelli as its makers. The bank's official could not recall whether the note was brought to the bank by the defendant or some employee of his company. At the time, the officer of the bank was told by the person who presented the note to fill in the date as January 30, 1962, the principal amount at $1,596, and make it payable to the bank in installments of $66.50 on the first day of each consecutive month.
At the same time there was presented to the officer of the bank a deed of trust purported to be signed in blank by the Bigellis. In like manner, the officer of the bank was directed by the person who had presented the note to fill in the date of the deed of trust as January 30, 1962, to insert a description of the automobile thereby conveyed, and recite that the deed of trust was given to secure the payment of the note described above.
In both of these instruments the address of the Bigellis was given as '1107 Wilson Road, Norf. 23.'
After the note and deed of trust had thus been completed, the note was discounted by the bank and the proceeds placed to the credit of Heath Auto Sales, Incorporated.
Both Daniel and Frances Bigelli testified that their purported signatures to the note and deed of trust were forgeries; that the use of their names was unauthorized by them; that they had not purchased from Heath Auto Sales the automobile described in the deed of trust; that they did not live at the address given on the note and deed of trust; and that they had never received from the bank any notice of their purported indebtedness to it.
When the forgeries were discovered the defendant was questioned by E. W. White, a detective of the Norfolk Police Department. White testified that the defendant admitted that the names of the Bigellis to both the note and the deed of trust were forgeries; that he himself had negotiated the note and deed of trust at the bank, knowing at the time that they had not been signed by the Bigellis; that they had not purchased any car from his company; 'that the papers were phony;' and that he received the proceeds of the note. While the defendant refused to divulge who had actually signed the Bigellis names to the note and deed of trust, he said that he 'would take the blame for all of this' and 'didn't want to involve anyone else in it.' This confession of the defendant was admitted without objection.
As to the alleged variance between the allegations and proof, the defendant argues that while the indictment described in detail the note which it was alleged that he had forged and uttered, the evidence shows that the instrument when presented to the bank was signed in blank. Hence, he says, the evidence fails to show either that the defendant forged or uttered the particular note described in the indictment.
There is no merit in this contention. 'Forgery is the false making or materially altering with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of legal liability. Blackstone defines it as 'the fraudulent making or alteration of a writing to the prejudice of another man's right.'' 8 Mich.Jur., Forgery, § 2, p. 559.
Obviously, signing the names of the Bigellis to this note and thereafter completing the instrument constituted a forgery within this definition. The defendant's confession to Detective White warranted the jury in finding that these blanks were filled in the note at the defendant's direction.
There was no variance as to the uttering of the forged instrument because the evidence shows that it was negotiated with, and accepted by, the bank after it had been completed.
The defendant assigns error to the admission of evidence of similar offenses committed by him. Over his objection, the Commonwealth introduced evidence showing that about the time of this transaction Heath Auto Sales, Incorporated, had discounted at the same branch of the same bank, and in the same manner, five other forged notes. Each of these notes bore the names of makers which were shown to be forgeries, and in addition thereto, bore the signature of the defendant as a comaker. Such evidence was clearly admissible as tending to show a general scheme or guilty knowledge and fraudulent intent on the part of the defendant. Sloan v. Commonwealth, 199 Va. 877, 881, 102 S.E.2d 278, 281; Hubbard v. Commonwealth, 201 Va. 61, 67, 109 S.E.2d 100, 105, and authorities there cited.
Over the objection of the defendant, the lower court granted Instruction C-2 which reads as follows: 'The court instruct...
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