Harrington v. State, 49236

• Decision Date: 17 August 1976
• Docket Number: No. 49236,49236
• Parties: Billy D. HARRINGTON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 721

336 So.2d 721

Billy D. HARRINGTON v. STATE of Mississippi.

No. 49236.

Supreme Court of Mississippi.

Aug. 17, 1976.

Pennington, Walker & Turner, West Point, for appellant.

A. F. Summer, Atty. Gen., by John C. Underwood, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before INZER, SUGG and LEE, JJ.

SUGG, Justice, for the Court:

The issues in this case are:

1. May evidence of uttering a forged instrument be introduced in a trial on an indictment for forgery?

2. Was defendant denied his constitutional right to a speedy trial?

Defendant was indicted at the July 1974 term of the Circuit Court of Oktibbeha County for forging a check in the amount of $100. Forging a check is a crime under the provisions of Mississippi Code Annotated section 97-21-35 (1972). Hodgkin v. State, 172 Miss. 297, 160 So. 562 (1935).

Defendant does not challenge the sufficiency of the evidence to support his conviction for forgery of the check including the endorsement of the payee, but contends that it was error for the state to introduce evidence that he uttered the forged check. He argues that evidence of uttering the forged check was evidence of a separate crime and was therefore inadmissible under the indictment charging forgery. The crime of uttering and the crime of forgery are separate and distinct offenses. Criddle v. State, 250 Miss. 328, 165 So.2d 339 (1964); Osby v. State, 229 Miss. 660, 91 So.2d 748 (1957); Cogsdell v. State, 183 Miss. 826, 185 So. 206 (1938).

The general rule is that the issue on a criminal trial shall be single, the testimony must be confined to the issue, and, on the trial of a person for one offense, the prosecution cannot aid the proof against him by showing that he committed other offenses. In Floyd v. State, 166 Miss. 15, 148 So. 226 (1933) we stated:

The reason and justice of the rule is apparent, and its observance is necessary to prevent injustice and oppression in criminal prosecutions. Such evidence tends to divert the minds of the jury from the true issue, and to prejudice and mislead them, and, while the accused may be able to meet a specific charge, he cannot be prepared to defend against all other charges that may be brought against him. 'To permit such evidence,' says Bishop, 'would be to put a man's whole life in issue on a charge of a single wrongful act, and crush him by irrelevant matter, which he could not be prepared to meet.' 1 Bish.Crim.Proc., § 1124. There are exceptions to the rule which has been stated, such as where the offense charged and that offered to be proved are so connected as to constitute but one transaction, or where it is necessary to identify the offender, or where it is material to prove motive, and there is apparent relation or connection between the act proposed to be proved and that charged, or where the accusation involves a series of criminal acts which must be proved to make out the offense, or where it is necessary to prove scienter or guilty knowledge and the like . . . (166 Miss. at 35, 148 So. at 230).

Younger v. State, 301 So.2d 300 (Miss.1974); Hosey v. State, 300 So.2d 453 (Miss.1974); Clanton v. State, 242 Miss. 734, 137 So.2d 180 (1962).

Evidence of uttering or negotiating the check in this case was competent for three reasons: first, it tended to establish the fraudulent intent of the defendant; second, when the defendant cashed the check, he forged the endorsement of the payee in the presence of the clerk who cashed the check, thus the forgery and the uttering were a part of the same transaction; third, there was a relationship between uttering the check and forging the endorsement of the payee.

This Court has previously held that evidence of similar transactions committed at or about the same time as a forgery offense, is admissible for the purpose of proving identity, intent, knowledge or a common scheme to defraud. Thompson v State, 309 So.2d 533 (Miss.1975), cert. denied 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 250; Pierce v. State, 213 So.2d 769 (Miss.1968).

Defendant's second contention is that his constitutional right to a speedy trial was violated. He filed a motion to dismiss the indictment for this reason and a hearing was held outside the presence of the jury. The proof on the motion showed that defendant was indicted at the July 1974 term for forgery and an attorney was appointed for him at that time. He was indicted, tried, convicted and received a sentence of ten years at the January 1975 term for armed robbery. This conviction was affirmed December 22, 1975. Harrington v. State, 323 So.2d 755 (Miss.1975).

At the January 1975 term defendant filed a motion for a continuance for the purpose of having an independent handwriting analysis made of the check which was the basis of the indictment. At the July 1975 term defendant was granted another continuance and was tried and convicted at the October 1975 term.

Defendant claims that the district attorney agreed to remand the forgery case to the files if the armed robbery case resulted in a conviction and was affirmed; however, there was no proof of such an agreement by the district attorney. The district attorney was called as a witness by the defendant and admitted that he probably talked to the defendant's attorney with reference to remanding the case to the files, but stated that no firm agreement was reached on the question. It was also developed at the hearing that, at the time defendant was indicted for the forgery in 1974, he was on parole from two previous forgery convictions and a revocation of parole hearing...