Gresham v. State, 1-780A194
| Citation | 412 N.E.2d 118 |
| Decision Date | 10 November 1980 |
| Docket Number | No. 1-780A194,1-780A194 |
| Parties | Donnie Perry GRESHAM, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Court of Appeals of Indiana |
Dennis R. Majewski, Terre Haute, for appellant.
Theodore L. Sendak, Atty. Gen., Eric M. Cavanaugh, Deputy Atty. Gen., Indianapolis, for appellee.
Donnie Perry Gresham appeals from a conviction of forgery, a class C felony, 1 pursuant to the verdict rendered following trial by jury. Gresham was sentenced to the Indiana Department of Correction for a fixed term of five (5) years. 2
We reverse and remand for a new trial.
The facts as gleaned from the evidence most favorable to the State show that on September 29, 1979, Gresham presented a check payable to one Paul R. Toulson and purportedly drawn by Herbert Joseph Owens to a teller at the Terre Haute Savings Bank, requesting cash for the check. Gresham presented two credit cards issued in the name of Paul R. Toulson for identification. The teller compared the drawer's signature on the check with Owens' signature card and found them to be dissimilar. She then called Owens and learned that he had not written such a check. The police were called to the bank. Gresham attempted to leave, but was arrested. The check which Gresham attempted to pass was in fact a forgery.
Gresham raises the following issues for our consideration in this appeal:
(1) whether the trial court erred in refusing Gresham's tendered Instruction No. 7 that knowledge on the part of the defendant that the check was forged is an essential element of the offense;
(2) whether the court erred in refusing Gresham's tendered Instruction No. 4 relating to circumstantial evidence; and
(3) whether the court erred in denying Gresham's motion for a directed verdict on the forgery charge.
Because we reverse and remand for a new trial on the first issue, it is unnecessary for us to decide the other issues raised in this appeal.
The statute pertaining to forgery, IC 35-43-5-2, defines two distinct crimes. The first is the actual forging of the instrument. The second is uttering a forged instrument. W. A. Kerr, Survey of Recent Developments in Indiana Law, I. Foreword: Indiana's Bicentennial Criminal Code, 10 Ind.L.Rev. 1, 24, (1976). It is apparent here from the charging information and the evidence that Gresham was charged and tried for uttering a forged instrument.
Gresham tendered his Instruction No. 7 which read as follows:
The court refused this instruction, but gave the following instructions pertaining to the essential elements of the offense:
"The crime of forgery is defined by statute as follows:
A person who, with intent to defraud, makes or utters a written instrument in such a manner that it purports to have been made by another person; at another time; with different provisions; by authority of one who did not give authority; commits forgery, a Class C felony.
"To convict the defendant the State must have proved each of the following elements:
The defendant
1. with intent to defraud
2. made or uttered a written instrument
3. purporting to have been made: by another person.
In order to determine whether the refusal of Gresham's tendered Instruction No. 7 was reversible error, or whether the issue was adequately covered by the court's instruction, we must determine the essential elements of the offense of uttering a forged instrument. Thus, we turn to an examination of authorities on that point.
It has been held by a long line of Indiana cases that the elements of the crime of uttering a forged instrument are the offering of a forged instrument, knowing it to be such, with a representation that it is genuine, and with an intent to defraud. Johnson v. State (1975) 164 Ind.App. 263, 328 N.E.2d 456; Sonafrank v. State (1975) 163 Ind.App. 141, 322 N.E.2d 719; Buckley v. State (1975) 163 Ind.App. 113, 322 N.E.2d 113; Hopper v. State (1974) 161 Ind.App. 29, 314 N.E.2d 98; Reid v. State (1973) 156 Ind.App. 692, 298 N.E.2d 480; McHaney v. State (1972) 153 Ind.App. 590, 288 N.E.2d 284; Jackson v. State (1967) 248 Ind. 579, 228 N.E.2d 3; Gennaitte v. State (1963) 243 Ind. 532, 188 N.E.2d 412. These cases clearly establish knowledge that the instrument is forged as an essential element of the offense of uttering a forged instrument. We note, however, that all of these cases were decided under the former forgery statute, Ind.Code 35-1-124-1, the relevant portion of which provided:
"Whoever ... utters or publishes as true any such (forged) instrument ... knowing the same to be ... forged ... with intent to defraud any person, body politic or corporate, shall on conviction be imprisoned ...." (Emphasis added).
Thus, we must determine whether the presence of the words "knowing the same to be ... forged" in the former statute and the absence of those words in the present statute renders the aforementioned cases inapplicable. In other words, we must decide whether the present statute by the omission of words pertaining to guilty knowledge by the accused changed the elements of the offense.
In making this determination, a look at decisions in other jurisdictions is helpful. It is undoubtedly the general rule that knowledge on the part of the accused that the instrument offered is forged is an essential element of the offense of uttering a forged instrument. The same rule as to the essential elements of the offense set forth in the previously cited Indiana cases is indeed the rule generally followed in other states. Heath v. State, (1980) Fla.App., 382 So.2d 391; People v. Grable, (1980) 95 Mich.App. 20, 289 N.W.2d 871; Strickland v. State, (1978) Tenn.Cr.App., 575 S.W.2d 957; Little v. State, (1978) 85 Wis.2d 558, 271 N.W.2d 105; Commonwealth v. Anderson, (1975) 237 Pa.Super. 208, 352 A.2d 92; State v. Talbot, (1964) 160 Me. 103, 198 A.2d 163; People v. Fork, (1965) 233 Cal.App.2d 725, 43 Cal.Rptr. 804; Smith v. Commonwealth, (1957) Ky., 307 S.W.2d 201. See also : 36 Am.Jur.2d, Forgery, § 20; 37 C.J.S. Forgery § 37; Perkins on Criminal Law, p. 354 (1969). It is true that the above cases were decided under statutes which specified guilty knowledge as an element of the offense much like our former statute. Nevertheless, these cases clearly establish the general rule that guilty knowledge is an essential element of the offense of uttering a forged instrument.
The Court of Special Appeals of Maryland was faced with the same question now before us in Pearson v. State, (1969) 8 Md.App. 79, 258 A.2d 917. The relevant Maryland statute 3 did not contain an express provision concerning guilty knowledge. Nevertheless, the Maryland court in Pearson held knowledge on the part of the defendant that the instrument was forged to be an essential element of the offense of uttering a forged instrument, and reversed the trial court for failure to instruct the jury that guilty knowledge was an element of the offense. See also: Bieber v. State, (1970) 8 Md.App. 522, 261 A.2d 202 ().
We believe Pearson to be dispositive of the issue in this case unless the Legislature by the enactment of the forgery section of our present penal code intended to change the elements of this offense. According to the Indiana Criminal Law Study Commission Comments, "(t)his ...
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Gresham v. State, 1-780A194
...Deputy Atty. Gen., Indianapolis, for plaintiff-appellee. RATLIFF, Judge. OPINION ON REHEARING In our opinion handed down November 10, 1980, 412 N.E.2d 118, we reversed the judgment of the trial court and remanded this cause for a new trial. We held that knowledge on the part of a person cha......