Mobley v. State
| Decision Date | 18 March 1960 |
| Docket Number | No. 38216,No. 2,38216,2 |
| Citation | 101 Ga.App. 317,113 S.E.2d 654 |
| Parties | C. L. MOBLEY v. STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. (a) A conviction of the offenses of forging a check and uttering a forged check may be predicated upon the confession of the defendant corroborated by proof of the corpus delicti, i. e. that the check in question was a forged check and that it had been uttered.
(b) There may be a forgery by the use of a fictitious name as well as by the use of a person's own name, if the intent exists to commit a fraud by deception as to the identity of the person who uses the name.
(c) Testimony that a person whose name purports to be signed to an instrument has no account or credit with the drawee bank and that upon a search made in the community an attempt to locate such a person has been unsuccessful is prima facie evidence that the name of the purported maker is a fictitious name.
2. (a) Evidence of other criminal transactions is, with certain exceptions, irrelevant and prejudicial in the trial of a defendant in a criminal case. A former felony conviction with punishment sentencing the defendant to confinement in the penitentiary may be pleaded and proved under Code § 27-2511 for the purpose of fixing the punishment, but where in such case the defendant, although indicted on a felony charge, received only misdemeanor punishment, it is error to overrule a plea in abatement contending that the conviction is not such a prior conviction as may be pleaded and proved under this section.
(b) Where the defendant has, without demurring, pleaded guilty to a felony indictment while represented by counsel, and has been sentenced and served his punishment by confinement in the penitentiary, such accusation and sentence, although defective, may be pleaded and proved in a subsequent trial for the purpose of fixing maximum punishment where not absolutely void on its face.
(c) As against a plea in abatement it is error to allege in an indictment a prior felony conviction, and thereafter to try the defendant upon such indictment, where the charge is completely unsubstantiated by any evidence that the defendant was charged with and convicted of such prior offense.
3. Testimony of the handwriting witness that the endorsement on the back of the check in question, which was a writing of the defendant's name, was in fact his own signature, was properly admitted although it did not tend to prove a forgery of the face of the check, for the reason that it was relevant on the issues of whether the defendant was concerned with the forging of the check and whether he was the person who uttered it.
4. (a) Count 3 of the indictment, charging the defendant with possession of a check with intent to utter, knowing it to be forged, was a part of the same criminal transaction as count 2 of the indictment which charged the defendant with uttering the same check. Accordingly, it would have been improper to sentence the defendant so as to cause him to suffer two punishments for the same offense.
(b) Where, however, the court in his sentence provided that the sentences on counts 2 and 3 should be served concurrently, there was no harmful error in instructing the jury that if they found the defendant guilty on both counts they should sentence him on both counts, the defendant having made no proper motion to compel the State to elect upon which count it desired to proceed.
Clifford Mobley was indicted, tried and convicted in the Superior Court of Cobb County on a three count indictment charging him with forging a certain check in the sum of $15 drawn on the Austell Bank, with uttering the check, and with possessing the check with the intention fraudulently to pass the same. Count 3 alleges, for the purpose of having the maximum punishment set under Code § 27-2511, that the defendant was previously convicted in Cobb Superior Court on two occasions for the offense of forgery and on one occasion for the offense of hog stealing. The defendant filed a plea in abatement contending that the court had improperly alleged the former convictions for reasons hereinafter set forth. The plea was overruled and an exception is based on this judgment. After trial and conviction the defendant moved for a new trial on the general grounds and five special grounds, which motion was denied, and he also moved for a judgment notwithstanding the verdict which was denied. These judgments are also assigned as error.
William H. Burke, Marietta, for plaintiff in error.
Luther C. Hames, Jr., Sol. Gen., Marietta, for defendant in error.
1. As to the general grounds of the motion for a new trial and the motion for a judgment notwithstanding the verdict, there was sufficient evidence to authorize a conviction. The defendant presented to a filling station proprietor the check in question, signed with the name 'Hubert Hulsey', who cashed the check and on presentation at the bank for payment discovered that there was no account in such name. The defendant endorsed the check with his correct name, 'C. L. Mobley' and also placed his thumb print on the back of the check at the proprietor's request. After his arrest he admitted, first orally and then in a signed statement, that he had obtained a blank check, signed the name 'Hubert Hulsey' to it and cashed it. There was also testimony by a member of the Georgia Bureau of Investigation that he had made a search for a Hubert Hulsey and had located no such person. To authorize conviction, the confession must be supported by aliunde evidence of the corpus delicti--that is, proof that the check in question was forged by someone. In looking to such proof, we do not follow that part of Logue v. State, 198 Ga. 672(2), 32 S.E.2d 397 which says that 'the confession itself may legally and properly be considered as a part of the proof of the corpus delicti,' first, because to do so is in contravention of Code § 38-420 which holds that the confession must be corroborated roborated by other evidence, and, second, because it appears to this court that the statement is in direct conflict with the older case of Johnson v. State, 86 Ga. 90, 93, 13 S.E. 282 which states: 'As to the alleged confession, we think that cannot be relied upon to supply the want of evidence as to the corpus delicti.' If the confession must be corroborated by other evidence such as the proof of the corpus delicti (See Daniel v. State, 63 Ga. 339) and yet to prove the corpus delicti one may look to the confession, the rule has been in effect destroyed. It is the duty of this court to follow the oldest Supreme Court case in the event of conflict, and we therefore look to the evidence here to decide whether every element of the corpus delicti has been proved independently of the confession sufficiently to constitute proof of this fact as a corroboration of the confession.
It was established that there was no account in Austell Bank in the name of Hubert Hulsey, and it was established that there had been a search to determine the identity of Hulsey and no such person had been found. 49 A.L.R.2d, Annotation, 852, 855 and citations. Where a check is forged by use of the name of a person in existence as the maker thereof, testimony that such person did not in fact sign the check is of course evidence that the check is a counterfeit. Where the name of the purported maker is fictitious, the State May prove a forgery by proving that the defendant did in fact write or was concerned in falsely writing the check, either by direct evidence, by proof of handwriting, or in some other way. The attempt to prove handwriting here failed for the reason that the witness refused to testify as to whether the defendant had written the words appearing on the face of the check, and her testimony that the defendant's own name endorsed on the back was written by him of course did not prove any forgery. Evidence that no such person as the purported writer of the check is in existence in the neighborhood where the transaction took place will also establish that the check is false or counterfeit, and the evidence to that effect has been set forth above. While it was very slight, there was no objection to that admitted on the ground that it was a conclusion, and no cross-examination to establish what investigation had in fact been made to determine the nonexistence of the alleged maker, and no issue is made in the briefs of counsel on this point. His possession and his utterance showed him to be concerned therein. We hold under the circumstances that the evidence was sufficient prima facie, and in the absence of any indication to the contrary, to establish that the check, being in the name of a fictitious maker, was a false or counterfeit check so as to prove the corpus delicti and thus constitute sufficient corroboration of the confession. The motion for a judgment notwithstanding the verdict, and for a new trial on the general grounds, are without merit.
In arriving at this conclusion we are aware that there is some confusion in our decided cases as to whether the signing of a fictitious name to a check by one who...
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