Clark v. State, A-391

• Decision Date: 06 August 1959
• Docket Number: No. A-391,A-391
• Citation: 114 So.2d 197
• Parties: LeRoy CLARK, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 197

114 So.2d 197

80 A.L.R.2d 261

LeRoy CLARK, Appellant, v. STATE of Florida, Appellee.

No. A-391.

District Court of Appeal of Florida,

First District.

Aug. 6, 1959.

Hal A. Davis, Quincy, for appellant.

Richard W. Ervin, Atty. Gen., and Odis M. Henderson, Asst. Atty. Gen., for appellee.

CARROLL, DONALD K., Judge.

The appellant was convicted in the Circuit Court for Columbia County of the crime of unlawfully uttering a forgery and sentenced to serve five years in the state prison. From the judgment of conviction and sentence he filed this appeal.

The indictment on which the appellant was tried charged that on January 30, 1958, in Columbia County he unlawfully and feloniously uttered and published as true to a named person a false and forged check, payable to the order of the appellant in the amount of thirty-seven dollars drawn on a bank in that county and signed in the name of 'Bill McClain' as the maker, the check being endorsed on the back by appellant, with intent to injure and defraud the named person and other persons and that the appellant at the time he so uttered and published the check well knew the same to be false and forged.

At the trial the state proved that on the date charged the appellant entered a drugstore in the city of Lake City, Columbia County, picked up a bottle of baby oil, baby powder, and safety pins, and handed to the person named in the indictment the check referred to in the indictment to pay for these items and to cash the check. This person called the bank on which the check was drawn and was told that there was no such account and so he refused to accept the check. A deputy sheriff testified that the appellant denied that he had forged the check and had stated that the check was given him by Bill McClain, that he had helped McClain load a truckload of fruit, and that McClain told him that he lived at Five Points, north of Lake City. This witness also testified that he had lived in Columbia County all of his life but did not know of a Bill McClain, and that he had unsuccessfully tried to locate a Bill McClain. The check in question was admitted in evidence as state's exhibit No. 1.

The Sheriff of Columbia County also testified that he had resided in Columbia County all of his life and had made an investigation and search to locate Bill McClain but was unsuccessful in his effort. An officer of the bank on which the check was drawn testified that there was no account in that bank in the name of Bill McClain, and that he did not know a Bill McClain.

When the state closed, the appellant moved for a directed verdict, which motion was denied by the court. The grounds for the motion were that the evidence was insufficient to sustain the charge, that the corpus delicti had not been established, and that it had not been shown that the instrument in question was a forgery. In denying the defendant's motion for directed verdict, the trial judge made this statement, among others, in the absence of the jury:

'Being the Jury is out, we will look at this check, it is all in the same handwriting, I'm not an expert, but you can look as the (L's) and they are all made alike, the same characteristics, and that can be a question for the Jury to decide too. I don't think I would be authorized to take the case away from the Jury under these circumstances, let them decide whether or not this Defendant in making a statement how he came by the check and who gave it to him, let them decide, it is a matter of whether or not is it a bona fide written document.'

The sole witness for the defense was the appellant himself. He testified that he got the check in question from Bill McClain for whom he had been working as a laborer. He admitted trying to purchase the baby oil and baby powder at the drugstore by using the check, saying that he had four babies, with one more expected to be born soon. He admitted that his signature was endorsed on the back of the check.

Following the testimony by the appellant himself, the defense closed, and the appellant moved the court for a directed verdict on the same grounds as in the prior motion at the end of the state's case, and the court denied the motion.

The above seems to us to be a fair statement of the testimony and evidence at the trial. It will be seen that there is not one word of testimony nor any other direct evidence that the check was forged and none that defendant at the time he attempted to cash it had knowledge that it was forged.

The offense of uttering a forged instrument, for which the appellant was indicted and of which he was convicted, is declared to be a crime in this state by Section 831.02, Florida Statutes, F.S.A., which reads as follows:

'Whoever utters and publishes as true a false, forged or altered record, deed, instrument or other writing mentioned in § 831.01 knowing the same to be false, altered, forged or counterfeited, with intent to injure or defraud any person, shall be punished by imprisonment in the state prison not exceeding ten years, or in the county jail not exceeding one year.' (Emphasis supplied.)

Section 831.01, referred to in the quoted section, describes the crime of forgery and mentions such writings as writing obligatory, orders for money, among others, and clearly contemplates the forging of a check.

It will be remembered that the indictment charged the appellant with uttering and publishing as true a false and forged written order for the payment of money and that he then and there well knew the same to be false and forged.

It is obvious from a reading of the quoted statute and the indictment that two of the essential elements of the offense for which the appellant was tried are (a) that the check was forged and (b) that he knew the check was forged at the time he uttered and published it. Yet we find in the record an absolute absence of any direct evidence to prove that the check was forged or that the appellant knew the check was a forged instrument.

While it seems hardly necessary to cite court decisions for this proposition, in view of the unequivocal language in the quoted statute defining the crime, the Florida Supreme Court has held that the offense of uttering forged instruments consists of the knowledge on the part of the accused that the instrument is false and the intent to injure or defraud another by asserting that the instrument is true. Harrell v. State, 79 Fla. 220, 83 So. 922.

The state contends, however, that the check itself, which was introduced into evidence, was sufficient to apprise the jury that it was made out, signed, and endorsed by one and the same person, and the appellant admitted endorsing the check. Conceding that the check was properly in evidence and before the jury as the paper which the appellant had attempted to utter, the state's contention raises the evidentiary question whether a jury is competent to compare the handwriting on the front and the admitted endorsement on the back of the check and reach the conclusion that the appellant both made and endorsed the check. Our conclusion is that the jury is not competent to do this in the absence of competent testimony with regard to the handwriting in question.

In support of its contention the state calls this court's attention to the similarity of certain capital L's and lower case s's and r's on the front and back of the check, stating that evidently the handwriting was by the same person. As indicated by the trial judge in the above-quoted statement made when denying the appellant's motion for a directed verdict, he apparently acted upon the same line of reasoning, mentioning that '* * * I'm not an expert, but you can look at the (L's) and they are all made alike, the same characteristics, and that can be a question for the Jury to decide too.'

By 'comparison of handwriting' is now universally meant the actual juxtaposition in court, either by the jury (or a court in its place), or by witnesses, of a writing whose authorship is unknown, with another writing admitted or proved to have been written by a person alleged and denied to have written the first. Black's Law Dictionary, 4th Ed. (1951).

At common law, the most remote and impalpable knowledge of a handwriting was considered sufficient to allow a witness to express his opinion of the authorship of a disputed writing. 62 L.R.A. 817, 818. A witness, for instance, whose knowledge was derived merely from seeing defendant make a writing once nineteen years before the trial, was declared competent to express his opinion as to the authorship of the disputed instrument. 62 L.R.A. 817, 818, citing Horne Tooke's Case, 25 How.St.Tr. 1 (1794). However, the propriety of a witness expressing an opinion in a criminal case as to the authorship of a disputed writing derived from a physical juxtaposition and comparison in court with approved genuine standards was judicially abolished in a series of somewhat conflicting decisions dating from approximately 1683. See 62 L.R.A. 817, 818. Likewise, during this early period, jury comparison of disputed writings was also rejected even though both the standard and disputed writings were often upon the same slip of paper so that no collateral issue was involved. It was not until the decision rendered in De La Motte's Case (1781), 21 How.St.Tr. 687, that proof of the defendant's handwriting by witnesses acquainted with it, was at last allowed again in a criminal trial.

It was the status of the common law of England on July 4, 1776, prior to the decision in the De La Motte's Case, which has been adopted by statute as the law of Florida. Section 2.01, Florida Statutes, F.S.A. As stated by our Supreme Court in Thompson v. Freeman, 111 Fla. 433, 149 So. 740, 743;

'At common law it was not possible to prove the genuineness of a signature or writing by comparison with any other signature or writing. The reasons usually given for the common-law rule were, that the handwriting of a person was constantly changing during his...