Neal v. State
| Decision Date | 07 January 1982 |
| Docket Number | No. 62792,62792 |
| Citation | 288 S.E.2d 241,160 Ga.App. 834 |
| Parties | NEAL v. The STATE. |
| Court | Georgia Court of Appeals |
Bobby Bearden, Macon, for appellant.
Willis S. Sparks III, Dist. Atty., Thomas J. Matthews, Asst. Dist. Atty., for appellee.
Warner Neal was convicted of first degree forgery and sentenced to five years, three to serve and two on probation.
On the basis of the evidence before the jury, that body was warranted in concluding that the owner of the two checks involved had suffered the theft of checks from his car. On January 19, 1981, Neal was positively identified as the person presenting one of the stolen checks in the amount of $185 to a retail merchant. This check was made out to one Wright as payment for labor performed. The merchant knew the ostensible maker of the check and suspected something was amiss. The merchant called the maker's wife and agreed that if she would approve the check, the merchant would cash it. Neal left the check, apparently to get that approval. Subsequently that check was cashed but no evidence showed who cashed the check. Neal never went to see the ostensible maker's wife.
The next day Neal and a co-accused, Hill, went to the bank upon which both checks involved had been drawn. Neal presented a check to a teller in the amount of $150 for payment to one Miller again for labor performed. The teller questioned the maker's signature and verified her suspicion by checking it against the signature on file. She then sent the check to the office for comparison. At that very time, the owner of the checks was in the bank closing his account because his checks had been stolen from his car. The teller closely observed the two occupants of the car, obtained a description of the car, its license number, and a description of the occupants. The teller identified Neal as one of the occupants but could not remember with certainty whether he was the driver or passenger. A handwriting expert identified the writing on the two checks as having been placed thereon by Neal.
Neal admitted being present at the bank in his mother's car and that Hill was a passenger. He admitted presenting the check in the amount of $150 to the teller but denied that he knew it was forged until after Hill told him it was a "funny" check. Neal denied being in the merchant's store or presenting the first check, or that he had written anything on either of the checks. In effect Neal defended by asserting that Hill was the culprit and he (Neal) was an innocent victim of circumstances. The jury acquitted Neal of the $185 check presented in the store but convicted him of presenting the check to the teller at the bank. Neal brings this appeal enumerating three errors. Held:
1. In his first enumeration of error, Neal raises the general grounds. We have no hesitancy in concluding that under the facts presented to the jury any trier of fact could conclude beyond reasonable doubt Neal's guilt of first degree forgery either as an aider and abettor to Hill or as the principal actor. Baldwin v. State, 153 Ga.App. 35, 37, 264 S.E.2d 528. Neal urges a story that he did not know the check was forged. This contention flies in the face of evidence that Neal placed all the fictitious writing on both checks. He attempted to pass a forged check to a merchant the day before. He was present and presented the check to the bank teller the next day. We find as a matter of law that the evidence supports the jury's verdict beyond reasonable doubt.
Ancillary to this enumeration, Neal raises for the first time in his brief an argument that the jury was not charged on the theory of mistake of fact. Apparently Neal contends that he was at the bank on an innocent mission and was unaware of Hill's nefarious intent. We conclude that Neal's argument misses the point. Neal's evidence does not raise mistake of fact. It raises innocent presence or lack of intent. The trial court clearly and fully charged that in order to make a finding of guilt the jury had to find that Neal intended to defraud and that he (Neal) knowingly participated in the passing of the check. Thus, we conclude that the court adequately charged upon the issues raised by Neal's testimony. Moreover, mistake of fact was not requested at trial; nor was it made the subject of an enumeration of errors, but is raised for the first time in Neal's brief. Enumerations of error cannot be enlarged by means of statements in briefs of counsel to include issues not made in the former. See Leniston v. Bonfiglio, 138 Ga.App. 151, 153, 226 S.E.2d 1; Holiday Homes v. Bragg, 132 Ga.App. 594, 597, 208 S.E.2d 608. See also Hill v. State, 237 Ga....
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