Darnell v. State, 670S134
| Citation | 257 Ind. 613,277 N.E.2d 366 |
| Decision Date | 17 January 1972 |
| Docket Number | No. 670S134,670S134 |
| Parties | Sandra L. DARNELL, Appellant, v. STATE of Indiana, Appellee. |
| Court | Supreme Court of Indiana |
J. Byron Hayes, Hayes & Hayes, Fort Wayne, for appellant.
Theodore L. Sendak, Atty. Gen., Lon D. Showley, Deputy Atty. Gen., for appellee.
Defendant (Appellant) was convicted of forgery under Acts of 1905, ch. 169, § 676 1956 Repl. Burns Ind.Stat.Ann. § 10--2102, I.C.1971, 35--1--124--1, in that she fraudulently used a credit card without the authorization of the owner and signed the owner's name to the credit instrument prepared in reliance upon said credit card. The statute under which the defendant was charged by affidavit is as follows:
'Forgery.--Whoever falsely makes, or assists in making, defaces, destroys, alters, forges, counterfeits, prints, or photographs, or causes to be falsely made, defaced, destroyed, altered, forged, counterfeited, printed or photographed, any record or authentic matter of a public nature, deed, will, codicil, lease, bond, covenant, writing obligatory, bank bill or note, check, bill of exchange, or any acceptance or indorsement of any bill of exchange, promissory note for the payment of money or other property, or any post note, acquittance or receipt either for money or property, or any acquittance, release or discharge of any debt, account, action, suit, demand or other thing, real or personal, or any order, warrant or request for the payment of money, or any auditor's warrant, treasury note, county order, city order, indorsement of any promissory note, draft, or order or assignment of any bond, writing obligatory, or promissory note for money or property, or any order or draft for the payment of money or property, or any lawful brand on a tobacco leaf, bacon or pork cask, lard keg or barrel, salt barrel or hay bale, or any ticket, check, order, coupon receipt for fare or pass, printed, written, lithographed or engraved, issued by any railroad or other transportation company or by the manager, lessee, agent or receiver thereof, or any plat, draft or survey of land, or transfer or assurance of money, stock, goods, chattels, or other property whatever, or any letter of attorney, or any power or authority to receive money, or to receive and transfer stock or annuities, or to let, lease, dispose of, alien or convey any goods or chattels, lands or tenements, or other estate, real or personal, certificate of a justice of the peace or other public officer, or any other instrument in writing, with intent to defraud any person, body politic or corporate, or utters or publishes as true any such instrument or matter, knowing the same to be false, defaced, altered, forged, counterfeited, falsely printed or photographed, with intent to defraud any person, body politic or corporate shall, on conviction, be imprisoned in the state prison not less than two (2) years nor more than fourteen (14) years, and fined not less than ten dollars ($10.00) nor more than one thousand dollars ($1,000).'
The affidavit charging the defendant, omitting its formal parts, is as follows:
'Defendant, Sandra L. Darnell did then and there unlawfully, feloniously, fraudulently and knowingly utter, publish and pass, endorse and deliver to Meyers and McCarthy, Inc., as true and genuine, a certain false, forged and counterfeit credit sales invoice for certain mechandise, to wit: one pair of men's slacks of the value of Twenty-Five Dollars ($25.00) and said pretended credit sales invoice purporting to have been made and executed by one Robert D. Taylor in favor of Meyers and McCarthy, Inc., which said false, forged and counterfeit credit sales invoice is of the following tenor, viz:
Midwest Bank Card Sales Slip
Quan. Description Amount
1 Pr. Slax 25.00
Dept. 2 Sub total 25.00
1809391 Sales Clerk
Hind #7 Tax 50
----------
12/24/68 25.50
s/
Robert D. Taylor
with intent then and there and thereby feloniously, falsely and fraudulently to defraud the Indiana Bank and Trust Company, then and there well knowing the said credit sales invoice to be false forged and counterfeit, being contrary to the form of the statute in such case made and provided.'
The motion to correct errors asserts (1) that the verdict of the jury is not sustained by sufficient evidence and (2) that the verdict of the jury is contrary to law.
When the sufficiency of the evidence is raised on appeal, this Court will consider only that evidence most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom. Fuller v. State (1971), Ind., 271 N.E.2d 720; Gibson v. State (1971), Ind., 271 N.E.2d 706; Lambert v. State (1969), 252 Ind. 441, 249 N.E.2d 502.
The conviction will be affirmed if, from that viewpoint, there is substantial evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Fuller v. State, supra; Gibson v. State, supra; Taylor v. State (1971), Ind., 267 N.E.2d 383.
This Court, on appeal, will not weigh the evidence or determine the credibility of witnesses. Fuller v. State, supra; Rusher v. State (1971), Ind., 270 N.E.2d 748; Sanchez v. State (1971), Ind., 267 N.E.2d 374.
Reviewing the evidence most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom, we find that the defendant had in her possession a bank credit card issued to the prosecuting witness, Robert D. Taylor, by the Indiana Bank and Trust Company, and that she presented it to a retail store clerk and signed Taylor's name to the credit instrument prepared by the clerk in reliance upon the credit card, as payment for merchandise purchased. The prosecuting witness testified that his credit card had been lost, that he was not acquainted with the defendant and had not authorized her to use the credit card. The defendant admitted the use of the credit card but testified that such use had been authorized by the prosecuting witness in return for sexual favor extended to him. It is her contention that in view of her testimony of sexual favors the uncorroborated testimony of the prosecuting witness is weakened to such point as to be insufficient to sustain the verdict of the jury. This is a novel approach and one that we cannot accept. Clearly it was within the exclusive province of the jury to determine which of the conflicting testimony it would believe and which it would disbelieve.
Under the heading of insufficiency of the evidence, the defendant refers to 'special proof problems' and 'gaps in the prosecution's case' with reference to the allegation in the affidavit of Defendant's intent to defraud the Indiana Bank and Trust Company and a variance in the proof with regard to a person or firm to be defrauded. This is essentially the same question as Defendant presents under the specification that the verdict is contrary to law and will be discussed under that specification.
It is the defendant's contention hereunder that when it is alleged that forgery is committed to defraud a particular person, that allegation must be proven and that proof that, in fact, a person or firm other than the ones specified would suffer the loss will not suffice. In support of this proposition, Defendant cites the following...
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Kindred v. State
...It is the allegation and proof that the defendant had the intent to defraud which is crucial to the conviction. Darnell v. State (1972), 257 Ind. 613, 277 N.E.2d 366; Ralston v. State (1980), Ind.App., 412 N.E.2d 239. Moreover, the failure of the State to specifically designate which counts......
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Ralston v. State, 1-580A107
...it is the allegation and proof that the defendant had the intent to defraud which are crucial to the conviction. Darnell v. State, (1972) 257 Ind. 613, 277 N.E.2d 366. Paragraph I sufficiently notifies Ralston of the crime Ralston contends that the trial court erroneously overruled his moti......
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...We have recently applied the rule, although not in respect to names, in Boyd v. State (1971), Ind., 266 N.E.2d 802, and Darnell v. State (1972), Ind., 277 N.E.2d 366. It is very clear that the variance complained of in the case before us could not have misled the defense, and it is equally ......
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...doubt that Houston misrepresented herself in the manner instructed. In distinguishing her case from that of Darnell v. State (1972), 257 Ind. 613, 277 N.E.2d 366, Houston points out that the Supreme Court of Indiana found sufficient evidence to convict Darnell of credit card fraud where Dar......