Johnson v. State, F--76--815

Decision Date19 May 1977
Docket NumberNo. F--76--815,F--76--815
PartiesAaron Samuel JOHNSON, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

BLISS, Judge:

Appellant, Aaron Samuel Johnson, hereinafter referred to as defendant, was conjointly charged with one Grady Harris for the offense of Uttering a Forged Instrument, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 1592, in the District Court, Oklahoma County, Case No. CRF--75--4481. Upon trial by jury he was found guilty and sentenced to a term of imprisonment of twelve (12) years. From said judgment and sentence a timely appeal has been perfected to this Court.

At trial, it was stipulated that on the basis of preliminary testimony, Becky Green would testify, if present, that she at no time gave anyone permission to take from her possession or permission to endorse her name on a check dated 26 September, 1975, drawn upon the First National Bank and Trust Company of Oklahoma City, Oklahoma, payable to the order of one Becky Green, or permission to cash said check.

The State's evidence established that on November 24, 1975, the defendant and co-defendant drove up to the teller window at the First National Bank and Trust Company in Oklahoma City. Georgia Hodges was the bank employee on duty. Grady Harris, co-defendant and driver of the automobile, presented the aforesaid check for payment with a purported signature of Becky Green and endorsenment and her social security number under the endorsement and also reflecting a subsequent endorsenment of the co-defendant. Hodges inquired of the co-defendant as to the identity of Becky Green, and co-defendant responded that she was his sister. The defendant was in the car driven by co-defendant and sat on the passenger's side. The defendant made no statement heard by the teller or any other bank personnel. A computer verification was run on the check and created a delay in the processing of the check. After a short wait the defendant exited the car and walked down the street. The computer verification revealed the check was stolen and the authorities were summoned, arresting co-defendant Harris at the scene.

Namoia Burd, Hodges' supervisor, substantiated the testimony of Hodges in the matters set out above.

John S. Gustin, an Oklahoma City Police Officer, testified that he arrested the defendant some four blocks from the bank.

After some proceedings in camera, the State rested and a demurrer to the evidence was presented to the trial court. The demurrer was overruled.

The defendant presented no evidence and did not take the witness stand.

Co-defendant Harris took the witness stand in his own behalf and admitted being with the defendant at the bank on the day in question and admitted presenting the check for payment. He testified that they had obtained the check at the defendant's girlfriend's house. He could not remember where the house was located or who was present at the time. Harris also testified that the defendant did not have any identification with him and that was the reason he presented the check. Harris stated that he told the teller that Becky Green was his girlfriend when the teller inquired as to the identity of Green. Harris denied any knowledge that it was a stolen or forged check.

The defendant's first assignment of error is that the trial court erred in overruling the defendant's demurrer to the evidence for the reason that the State's evidence wholly failed to prove the crime charged. We note that in Oklahoma the proper practice to attack the sufficiency of the evidence is a motion to direct a verdict under 22 O.S.1971, § 850, and a demurrer to the evidence should be treated as a motion to direct a verdict. Nail v. State, 18 Okl.Cr. 40, 192 P. 592 (1920). It is common for attorneys to move for a demurrer to the evidence at trial and for this reason we will use that language in the instant case.

The State presented no evidence of an overt act in word or gesture made by the defendant in furtherance of the crime of Uttering a Forged Instrument. Under 21 O.S.1971, § 1592, the State must prove that the defendant offered for acceptance a forged instrument with an intent to defraud or aided and abetted another in such an attempt, 21 O.S.1971, § 172. In either case, the defendant's knowledge of the falsity of the check in question must be shown. It is not enough that the defendant acquiesced in the commission of a crime where all the testimony of the State's witnesses indicates that the defendant took no part, gave no counsel, nor uttered any word of...

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9 cases
  • Omalza v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 29 d5 Dezembro d5 1995
    ...Davis v. State, 16 Okl.Cr. 372, 374, 182 P. 908 (1919); Nail v. State, 18 Okl.Cr. 40, 43, 192 P. 592, 593 (1920); Johnson v. State, 564 P.2d 664, 666 (Okl.Cr.1977); Murphy, 666 P.2d at 237; Jones v. State, 772 P.2d 922, 925 ...
  • Fisher v. Kaiser
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 29 d1 Novembro d1 1993
    ..."the State must prove that the defendant offered for acceptance a forged instrument with intent to defraud...." Johnson v. State, 564 P.2d 664, 666 (Okla.Crim.App.1977). The term "utter," as used in this statute, "means to offer, whether accepted or not, a forged instrument, with the repres......
  • Dangerfield v. State, F-84-762
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 31 d1 Agosto d1 1987
    ...should have been charged under 21 O.S.1981, § 1577 rather than 21 O.S.1981, § 1592. In support of this contention he cites Johnson v. State, 564 P.2d 664 (Okl.Cr.1977). We first observe that appellant failed to object or file a motion to quash the information; thus, he has waived any error.......
  • Murphy v. State, M-82-442
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • 28 d2 Junho d2 1983
    ...verdict under 22 O.S.1971, § 850, and a demurrer to the evidence should be treated as a motion to direct a verdict. Johnson v. State, 564 P.2d 664 (Okl.Cr.1977); Nail v. State, 18 Okl.Cr. 40, 192 P. 592 When the sufficiency of the evidence presented at trial is challenged on appeal, as it i......
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