Green v. State

• Decision Date: 14 September 1976
• Docket Number: No. 995,995
• Citation: 32 Md.App. 567,363 A.2d 530
• Parties: Herman GREEN v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 567

32 Md.App. 567

363 A.2d 530

Herman GREEN v. STATE of Maryland.

No. 995.

Court of Special Appeals of Maryland.

Sept. 14, 1976.

Robert E. Farnell, III, Cambridge, with whom were Farnell, Freeland & Wright, Cambridge, on the brief, for appellant.

Henry E. Dugan, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arrie W. Davis, Asst. Atty. Gen., and Sidney S. Campen, Jr., State's Atty., Talbot County, on the brief, for appellee.

Argued before POWERS, LOWE and MASON, JJ.

POWERS, Judge.

The first count of an indictment returned by the grand jury of Talbot County charged that Herman Green, on 27 June 1973, with intent to defraud, feloniously did falsely make, forge and counterfeit a certain check or bill of exchange. Count 2 charged that Green caused and procured the forgery of the check, and Court 3 charged that he uttered the forged check.

At a jury trial held in the Circuit Court for Talbot County on 19 November 1973 Green was found guilty of the first count. The trial judge granted his motion for judgment of acquittal on the second and third counts. After sentence was imposed, Green appealed. We affirmed. Green v. State, 23 Md.App. 680, 329 A.2d 731 (1974). We declined to decide a variance question raised in that appeal, because it had not been tried and decided below. Maryland Rule 1085.

Also raised by Green in his first appeal was whether the method of selection of the jury violated his rights. We held that the facts touching on that issue could not be ascertained from the record before us, and said that the resolution of the contention was best left to post conviction procedures. Green's subsequent petition for post conviction relief was granted. His conviction was set aside, and he was awarded a new trial.

The present appeal arose from Green's second trial, held before a jury in the Circuit Court for Talbot County on 9 September 1975. It appears that Green moved to dismiss the second and third counts, on the ground of double jeopardy. The motion was not argued nor ruled upon. In any event, the State, with no objection, entered a nolle pros as to those counts. Green's motion for judgment of acquittal at the close of all the evidence was denied. The verdict of the jury on the first count was guilty.

This appeal raises the question of sufficiency of evidence, which appellant states simply: may a person charged with forgery of a check be convicted on evidence showing forgery of an indorsement to a check? Appellant also questions the sufficiency of the evidence to prove an intent to defraud. Both questions were raised by his motion for judgment of acquittal below, and were decided adversely to him.

For the purpose of deciding the questions presented the facts may be stated very briefly. A book of checks was stolen from the place of business of Thomas Shockley, in Talbot County. A few days later one of the checks was passed at a supermarket in Easton. The check was signed with the name 'Thomas Shockely', but Mr. Shockley did not sign his name, nor did he write any part of the check. The named payee was 'Robert Thomas', presumably a fictitious name. That name was signed, as an indorsement, on the back of the check. There was expert evidence that it was written by Herman Green, the appellant. There was no evidence to show who filled in the face of the check, except that it was neither Mr. Shockley nor the appellant.

The criminal act charged against appellant was referred to in the indictment as being in 'violation of Article 27 Section 44 Annotated Code of Maryland (1957) against the peace, government and dignity of the State.' Section 44, with the part relating to uttering deleted, reads:

'Any person who shall falsely make, forge or counterfeit, or cause or procure to be falsely made, forged or counterfeited, or willingly aid or assist in falsely making, forging, altering or counterfeiting any deed, document or affidavit of waiver or release of mechanics' lien, will, testament or codicil, bond, writing obligatory, bill of exchange, promissory note for the payment of money or property, endorsement or assignment of any bond, writing obligatory, bill of exchange, promissory note for the payment of money or property, acquittance or receipt for money or property, or any acquisition or receipt either for money or for property, with intention to defraud any person whomsoever, * * * shall be deemed a felon, and on being convicted thereof shall be sentenced to the penitentiary for not less than one nor more than ten years.'

It will be seen that what the statute does is to deem to be a felon, and prescribe the sentence, for any person who falsely makes, forges, or counterfeits, with intention to defraud any person whomsoever, any of the following instruments:

a. Deed

b. Document or affidavit of waiver or release of mechanics' lien

c. Will, testament or codicil

d. Bond

e. Writing obligatory

f. Bill of exchange ¹

g. Promissory note for the payment of money or property

h. Indorsement or assignment of any bond, writing obligatory, bill of exchange, promissory note for the payment of money or property

i. Acquittance or receipt for money or property or

j. Any acquisition or receipt either for money or for property.

Also deemed a felon, and likewise punished, is one who causes or procures, or willingly aids or assists another to commit the proscribed acts, and one who utters or publishes as true any such false, forged, altered, or counterfeited instrument.

It is evident that under the statute, forgery of an indorsement on any of certain specified instruments is, or at least can be, a separately indictable crime. It is also clear that forgery of any material part of an instrument is forgery of the instrument. What the question amounts to is whether an indorsement on a check, the forgery of which may be charged as a separate crime, becomes an integrated part of the check, so that forgery of that part of the check may be charged as forgery of the check.

Ever since the enactment of Chapter 75, Laws of Maryland, 1799, ² 'An Act for the more effectual preventing of forgery * * *', forgery of an indorsement or assignment on certain instruments has been statutorily proscribed separately from, or at least in addition to, forgery of the instrument itself.

In our earlier opinion in Green v. State, supra, we stated and discussed the variance issue then raised in order to illustrate that it was not before us because it was not raised at the trial. We said, 23 Md.App. at 685, 329 A.2d at 735:

'There is no question but that the first count of the indictment was sufficient on its face to charge that Green forged the check designated. So the indictment itself is not subject to attack. But the general rule is that matters essential to the charge must be proved as alleged in the indictment. Love and Matthews v. State, 6 Md.App. 639, 642, 252 A.2d 493. We put it thus in Benjamin v. State, 9 Md.App. 373, 375, 264 A.2d 490, 'It is, of course, well settled that the evidence in a criminal case must not vary from those allegations in the indictment which are essential and material to the offense charged.' When there is a material variance between the allegata and the probata, the judgment must be reversed. Melia and Shelhorse v. State, 5 Md.App. 354, 363, 247 A.2d 554.'

In McDuffy v. State, 6 Md.App. 537, 252 A.2d 270 (1969), we applied the variance rule when we said, at 538-39, 252 A.2d at 271:

'The indictment charged that McDuffy forged an 'American Oil Credit Card.' Testimony showed that the card was not in any way forged or altered by anyone, but that a receipt for certain merchandise was forged by McDuffy, who contends that he cannot be convicted of forging a receipt under an indictment which charges him with forging a credit care. We do not think it requires a citation of authority to support the proposition that an individual cannot be convicted of forging one instrument when the proof shows that he forged an entirely different instrument. We must, therefore, reverse this conviction.'

The Court of Appeals has indicated that the forgery statutes in Maryland do not necessarily cover the entire field of forgery. In Reddick v. State, 219 Md. 95, 148 A.2d 384 (1959), the appellant had been convicted of forging and uttering a license to practice medicine and surgery in the State of Maryland. He contended on appeal that the indictment did not charge an offense because Code, Art. 27, § 45, relating to fortery of public documents, referred to 'any commission, patent or pardon' and a license to practice medicine was not a commission. The Court of Appeals said, at 98, 148 A.2d at 386:

'But if we assume, without deciding, that the statute does not cover the case at bar, it would seem that the indictment for forgery and uttering would be good at common law. See Arnold v. Cost, 3 Gill & J. 219. Forgery has been defined as 'the false making or material alteration, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability.' 2 Wharton, Criminal Law and Procedure (Anderson's ed.), Sec. 621. See also Clark and Marshall, Crimes (5th ed.), Sec. 398. Even where a statute has been enacted covering forgery, the common-law offense is still applicable where the statute was not intended to cover the whole filed or to repeal the common law. Clark and Marshall, supra, Sec. 14; Joyce, Indictments, Sec. 14. Cf, Lutz v. State, 167 Md. 12, 15, 172 A. 354.'

In the absence of a statute covering checks and indorsements, a forgery of either would undoubtedly be an indictable common law offense. But when the statute, in explicit words, lists a series of written instruments which may be the subject of forgery, we are satisfied that the statute was intended to cover at least so much of the field as is included in the list.

We have considered the distinction in commercial law between an instrument and an indorsement affixed to it, but we are not persuaded...