Finger v. State, 771S196

• Decision Date: 07 March 1973
• Docket Number: No. 771S196,771S196
• Citation: 260 Ind. 148,293 N.E.2d 25,35 Ind.Dec. 410
• Parties: Paul E. FINGER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 25

293 N.E.2d 25

260 Ind. 148

Paul E. FINGER, Appellant, v. STATE of Indiana, Appellee.

No. 771S196.

Supreme Court of Indiana.

March 7, 1973.

Frank E. Spencer, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Paul H. Frazier, Deputy Atty. Gen., for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted in 1968 of uttering a forged check under Acts of 1905, ch. 169, § 676, 1956 Repl. Burns Ind.Stat.Ann. § 10--2102, IC 1971, 35--1--124--1. He was sentenced to imprisonment for not less than two nor more than fourteen years. His appeal to this Court is taken from an adverse ruling upon a belated motion to correct errors and presents two issues:

(1) Insufficiency of the evidence.

(2) Violation of his Sixth Amendment right to effective counsel at his trial.

Neither issue has merit.

(1) The evidence, viewed most favorably to the State, discloses that the defendant presented a payroll check to the manager of the 7--11 Market in Indianapolis and asked that it be cashed. The check was purportedly drawn by the J. J. Hoffman Co. and payable to the order of Alex Williams. Upon request for identification, Defendant gave the manager a photo copy of the record of birth of one Mary Alice Williams, which record named Alex Williams as her father. When the manager indicated his reluctance to cash the check and advised the defendant that it was not even his check, the defendant replied that he had taken it as payment for a television set which he had sold. The manager being suspicious, telephoned both the bank and the Hoffman Company and learned that the check was one in a series of printed check forms previously stolen from the Hoffman Company and that the blanks had been filled in and the signature added by forgery. He so advised the defendant, who insisted that he had taken it in payment for the television set. Unknown to the defendant, the manager also summoned the police by an alarm system. Testimony from representatives of the Hoffman Company and the bank established that the check had been stolen, was not signed by an authorized person and that neither the defendant nor Alex Williams were employees or otherwise creditors of the Hoffman Company. The defendant remained in the store for a period of approximately five minutes while the foregoing transpired. He was aware of the manager's telephone calls to the bank and to the Hoffman Company, and although he was aware of their charges of theft and forgery, with respect to the check, he made no attempt to leave. When two police officers arrived in response to the manager's call, however, he and a companion attempted to exit as the first officer entered, but they were grabbed and detained by the second officer, who was entering the premises behind the first.

We hold that the foregoing was sufficient evidence of the defendant's 'intent to defraud,' an essential element of the offense charged. The recent case of McAfee v. State (1973), Ind., 291 N.E.2d 554, is but one in a long line of cases holding that the requisite guilty knowledge and intent may be inferred from circumstantial evidence. The irregularity of the presentment of the check drawn to the order of another person but not endorsed by him with evidence of the identity of such other person, rather than of the presenter, coupled with an unlikely story of having accepted the check from a stranger as payment for property of substantial value clearly support an inference of guilty knowledge and intent. We, on appeal, examine such evidence not to determine its adequacy to overcome every reasonable hypothesis of innocence but to determine whether an inference may be reasonably drawn therefrom tending to support the finding of the trier of the facts. McAfee v. State (supra). The attempted flight, heretofore held to be competent evidence of the consciousness of guilt, Layton v. State (1968), 251 Ind. 205, 240 N.E.2d 489, Walker v. State (1968), 250 Ind. 649, 238 N.E.2d 466, Meredith v. State (1966), 247 Ind. 233, 214 N.E.2d 385, reenforces the inference.

(2) With his motion to correct errors, and in support of his contention that he was not provided with effective defense counsel, Defendant filed an affidavit which, in pertinent parts, is as follows:

'AFFIDAVIT

I, Paul E. Finger, do swear and depose, under oath, that:

1. To the best of my knowledge my trial counsel, Mr. Fred L. Steinhauer, made no effort or attempt to interview or subpoena witnesses, known to him, who would have testified in my behalf, particularly one Alex Williams, who gave me the check allegedly forged and altered, together with the identification.

2. In the course of preparation and trial, Mr. Steinhauer interviewed me on only two (2) occasions, for a total time of fifteen (15) minutes. Both of these interviews took place in the lockup area of the courtroom.

3. After sentencing upon this conviction, Mr. Steinhauer refused to take any further action on my behalf.

4. It is my opinion that Mr. Steinhauer's lack of preparation and ineffective assistance in my case was due primarily to his poor health.'

The State filed no counter-affidavit in response to the defendant's affidavit, and it is Defendant's contention that the court was therefore bound to accept his affidavit as true, citing Scharbrough v. State (1968), 249 Ind. 316, 232 N.E.2d 592. We did not in that case, however, indicate, as is reflected by the head note, that we were bound, in all circumstances, to accept the truth of affidavits filed in support of such motions but only that we were...