Cantrell v. State, 63290
| Decision Date | 06 April 1982 |
| Docket Number | No. 63290,63290 |
| Citation | 290 S.E.2d 140,162 Ga.App. 42 |
| Parties | CANTRELL v. The STATE. |
| Court | Georgia Court of Appeals |
J. Laddie Boatright, Hazelhurst, Donald A. Starling, Douglas, for appellant.
C. Deen Strickland, Dist. Atty., Waycross, for appellee.
Appellant was indicted, tried and convicted of forgery in the first degree. He appeals.
1. Forgery in the first degree is defined in Code Ann. § 26-1701(a) as follows: "A person commits forgery in the first degree when, with intent to defraud, he knowingly makes, alters or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, or at another time, or with different provisions, or by authority of one who did not give such authority and utters or delivers such writing." The indictment under which appellant was tried alleged he "did, with intent to defraud, knowingly forge the name of Eula M. Chandel ... to a certain United States Treasury Check, said check being check number 10,935,464, dated February 1, 1980 in the amount of $209.70, made payable to Eula M. Chandel ..., and did utter and deliver said forged instrument and writing to..., a teller for the Farmer's Bank, Douglas, Georgia."
It is readily seen that the indictment alleged that appellant had violated Code Ann. § 26-1701(a) by forging the endorsement of, Eula M. Chandel, the check's payee and by then cashing the check over this forged endorsement. See Henderson v. State, 145 Ga.App. 597, 244 S.E.2d 136 (1978). At trial, the evidence demonstrated that when the check was presented for payment by the appellant it in fact contained two endorsements, the first being the purported signature of Eula Chandel, the named payee, and the second being the signature of one apparently fictitious Bobby Caldwell. Mrs. Chandel testified that she never received the check and the purported endorsement in her name was not her signature. The state's handwriting expert, after comparing exemplars of appellant's writing, was unable to identify the endorsement of Eula M. Chandel on the check as having been written by appellant or anyone else. Instead, the state's handwriting expert was able to testify only that the second endorsement, that of "Bobby Caldwell", had been written by appellant.
On this evidence, we find a fatal variance between the allegation of the indictment that appellant violated Code Ann. § 26-1701(a) by forging the endorsement of Eula M. Chandel and the proof at trial which utterly failed to demonstrate that appellant had forged that endorsement. Compare Harrison v. State, 151 Ga.App. 758, 261 S.E.2d 482 (1979). " ...
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