Cogsdell v. State
| Decision Date | 12 December 1938 |
| Docket Number | 33414 |
| Citation | 183 Miss. 826,185 So. 206 |
| Court | Mississippi Supreme Court |
| Parties | COGSDELL v. STATE |
APPEAL from the circuit court of Warren county HON. R. B. ANDERSON Judge.
C. L Cogsdell was convicted of uttering and publishing as true a forged check, knowing the instrument to be forged, and he appeals. Reversed and remanded.
Reversed and remanded.
Harry K. Murray, of Vicksburg, for appellant.
The defendant was indicted under our statutes, Section 949 of the Mississippi Code of 1930. There was no evidence adduced by the State to show that defendant "uttered, published or put off as true" the check in this case.
No witness for the State testified that the check was ever presented for payment by Cogsdell; on the contrary, Mr. Ryan the teller states positively that he never saw the check and it was never presented to him for payment; that Cogsdell came to the window and got three dollars worth of change.
4 Words and Phrases (2nd Series), page 1118.
There was no evidence that the defendant forged the signature "H. L. Fischel" to the check; he was not indicted for forgery, yet the court gave the state an instruction that if the jury believed, etc., that the defendant did "make a forge" the check, knowing same to be false and with a felonious, etc., intent to defraud the bank, they would find the defendant guilty. There was no reference to this instruction to the indictment. In fact, it was not and could not have been predicated upon the indictment.
It is elemental that "uttering and publishing" paper and "forging" paper are separate and distinct offenses.
Burgess v. State, 81 Miss. 482, 33 So. 499.
With all of the evidence in this case before the appellate court with the charge against the defendant as set out in the indictment, with the submission of the case to the jury upon a different proposition entirely, taking all of the evidence of the State as true, we submit that the defendant has committed no offense.
W. D. Conn, Jr., Assistant Attorney-General, for the State.
In the judgment of the writer of this brief there was a total failure of proof to sustain the allegation that appellant uttered this forged cheek.
Appellant was not represented by counsel by the trial and there was no motion to exclude, nor was there any requested peremptory instruction nor motion in arrest of judgment. However the defendant stated, It will be noted that appellant was not on trial for forgery itself, but an uttering thereof. Whether this statement or appellant was sufficient as a request for a directed verdict as to justify his discharge in this court in the event the court holds there was no evidence to support the...
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...evidence to convict accused of crime charged in indictment, the point may be raised for the first time on appeal." See Cogsdell v. State, 183 Miss. 826, 185 So. 206. and remanded. ...
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...offenses. Criddle v. State, 250 Miss. 328, 165 So.2d 339 (1964); Osby v. State, 229 Miss. 660, 91 So.2d 748 (1957); Cogsdell v. State, 183 Miss. 826, 185 So. 206 (1938). The general rule is that the issue on a criminal trial shall be single, the testimony must be confined to the issue, and,......
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