Finley v. Com.

• Decision Date: 12 June 1953
• Citation: 259 S.W.2d 32
• Parties: FINLEY v. COMMONWEALTH.
• Court: United States State Supreme Court — District of Kentucky

Page 32

259 S.W.2d 32

FINLEY v. COMMONWEALTH.

Court of Appeals of Kentucky.

June 12, 1953.

T. E. Mahan and Joe Feather, Williamsburg, H. M. Sutton, Corbin, J. B. Johnson, Harlan, and Cleon K. Calvert, Pineville, for appellant.

J. D. Buckman, Jr., Atty. Gen., and Zeb. A. Stewart, Asst. Atty. Gen., for appellee.

CULLEN, Commissioner.

J. L. Finley was convicted of uttering a forged instrument, in violation of KRS 434.130, and his punishment was fixed at two years' confinement in the penitentiary. He appeals, asserting numerous grounds of error.

J. L. Finley and his brother Charles had executed a note to the First National Bank of Williamsburg, in the amount of $600. When the note became due, $300 was paid by J. L. and a renewal note for $300, signed by both the brothers, was executed. When the renewal note fell due, the bank notified J. L. and sent him a form for a second renewal note. Charles was living in Tennessee and was not immediately available to sign this note, so J. L. signed his own name and the mother of the two men, at J. L.'s request, signed Charles' name. J. L. delivered the note to the bank and the first renewal note was surrendered to him. J. L. and the mother both admitted that they had no authority to sign Charles' name. The prosecution is for uttering the second renewal note.

The first contention of the appellant is that the demurrer to the indictment should have been sustained because (1) there was no allegation that the uttering was done with fraudulent intent, (2) there was no allegation that Charles' name was signed without his authority, and (3) the acts constituting the forgery were not stated.

The first ground is not sustainable because we find that the indictment specifically alleges that the uttering was done with fraudulent intent. The second and third grounds have no merit because in an indictment for uttering a forged instrument it is sufficient to state the acts constituting the uttering, and it is not necessary to state the acts constituting the forgery. Com. v. Cochran, 143 Ky. 807, 137 S.W. 521; Honeycutt v. Com., Ky., 245 S.W.2d 444.

It is next contended that the court erred in refusing to permit the mother to answer a question as to whether it was her custom to sign similar papers for the children. The answer to this is that the mother did not claim that she had any authority, by virtue of a custom, to sign Charles' name to the note. In fact, her testimony shows that she was reluctant to sign the note, and did so only after J. L. assured her that it was all right. Shelton v. Com., 229 Ky. 60, 16 S.W.2d 498, is distinguishable, because in that case the defendant maintained throughout that he had authority by virtue of a custom to sign his brothers' names.

The third contention is that the court erred in refusing to give a directed verdict for the defendant. This is on the theory that there was no proof that the mother had any fraudulent intent in signing Charles' name. The argument is that one cannot be convicted of uttering a forged instrument without proof that the instrument was in fact forged, and in order to prove the latter it must be shown that the person who actually signed the name had a fraudulent intent.

We think that under the facts of this case the intent of the mother was immaterial. The evidence shows that she signed Charles' name at J. L.'s request and direction. To all intents and purposes the forging was done by J. L., and his intent to defraud was sufficiently established. The situation is the same as if J. L. had actually done the signing. Carter v. Com., 311 Ky. 252, 223 S.W.2d 900; Robinson v. Com., 217 Ky. 129, 288 S.W. 1044.

It is further argued, in support of the claim of right to a directed verdict, that there could have been no intent to defraud because, under the circumstances, the second renewal note could not have operated to defraud anyone. It is pointed out that Charles is solvent, and that he remains liable on the first renewal note, so neither he nor the bank could be adversely affected by the uttering of the forged second renewal note. This argument loses sight of the fact that J. L. could, and apparently did, receive some benefit from the standpoint of an extension of time for payment of his own obligation as represented by the note. Also, the law is well established that the actual accomplishment of a fraud is not a necessary element of the offense of uttering a forged instrument. Com. v. Fenwick, 177 Ky. 685, 198 S.W. 32, L.R.A.1918B, 1189; Fain v. Com., 287 Ky. 507, 154 S.W.2d 553.

It is next contended that the evidence was fatally at variance with the indictment. This is on the theory that the indictment charged that upon presentation of the note the bank paid J. L. $300 in money, whereas the proof showed that J. L. did not receive any money in the transaction, but only the cancelled first renewal note. In our opinion this variance was not such as to mislead the accused in making his defense, or to expose him to the danger of double jeopardy, and therefore it was not material. Thomas v. Com., 259 Ky. 786, 83 S.W.2d 460; Harr v. Com., 245 Ky. 278, 53 S.W.2d 575; Miller v. Com., 234 Ky. 224, 27 S.W.2d 957.

The fifth contention is that the instructions were erroneous, in failing to require the jury to find that the actual signing of the note was done with fraudulent intent. The argument here is the same as the arguments hereinbefore discussed concerning the sufficiency of the indictment and the right of the defendant to a directed verdict, and the answers are the same.

The sixth contention is that the court erred in refusing to instruct on the defendant's theories of the case. One theory way that the mother had no fraudulent intent in signing Charles' name to the note. This theory has been disposed of. Another theory was that, as between Charles and J. L., each was...