Pearson v. State

• Decision Date: 17 November 1969
• Docket Number: No. 1,1
• Citation: 258 A.2d 917,8 Md.App. 79
• Parties: Jon Frederick PEARSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 79

8 Md.App. 79

258 A.2d 917

Jon Frederick PEARSON v. STATE of Maryland.

No. 1.

Court of Special Appeals of Maryland.

Nov. 17, 1969.

E. Gwinn Miller, Rockville, for appellant.

T. Joseph Touhey, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., and E. Allen Shepherd, Jr., State's Atty. and Asst. State's Atty. for Prince George's County, respectively, on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

MURPHY, Chief Judge.

The appellant Jon Frederick Pearson was convicted by a jury of uttering a forged check and was sentenced to four years in the custody of the Department of Correction. From this judgment he appeals, alleging that the trial judge erred when he refused to instruct the jury, as requested, that to convict him for uttering a forged check, it must find that he knew the check was forged.

On April 7, 1968, someone broke into an office trailor belonging to the Billy J. Walker Contracting Corporation in Prince George's County, stealing a check writer and a quantity of corporate checks, numbers 6020 through 6500, bearing, the name of that company. On April 18, 1968 at about 3:00 p. m., the appellant Pearson entered the Greenbelt Consumers Cooperative Store, located in the Capital Plaza Shopping Center in Prince George's County, presented Walker's check No. 6082, payable to Loris M. Forrester, to the Assistant Manager Bernard Vaughn, and asked: 'Can you cash this check for me?' The check, which was signed by Billy J. Walker, was not endorsed. ¹ Vaughn, who had been alerted that the Walker checks had been stolen, said: 'Do you have some identification,' and Pearson said 'Yes,' giving him a driver's license in the name of Loris M. Forrester. Vaughn said, 'Is this you?' Pearson replied 'Yes.' Vaughn told Pearson that the store manager had to approve the check, and that he was in the barbershop getting a haircut. Vaughn then went to the barbershop where he alerted a Plaza policeman. Pearson, after waiting a while, followed Vaughn to the barbershop where the latter confronted him with the fact that the check was 'bad.' Pearson claimed that 'it wasn't his check and it wasn't his identification,' and that a 'Loris' had given both to him when he was in the Montgomery Ward store located in the shopping center so that Pearson could cash the check for him. Vaughn and the policemen then took Pearson to Wards but Forrester could not be located. On the way back to the Greenbelt store, Pearson asked whether Vaughn was going to call the police and when Vaughn answered 'Yes,' Pearson tried to run. He was held by Vaughn and the policeman and offered no further resistance.

At trial, Rosilyn Payne, a girlfriend of Pearson, testified that she, Pearson, and Forrester had driven to the shopping center in Pearson's car; that Forrester gave Pearson what he called his paycheck and his identification, and told Pearson to cash the check because he (Forrester) had a lot of things to do at Montgomery Wards; that she then went with Pearson to the Greenbelt store and when Pearson could not cash the check, she went, at his request, to look for Forrester at Wards; but that she did not find him. Miss Payne testified that she unsuccessfully looked for Forrester up to the time of trial. She said that she had previously seen Forrester on several occasions and presumed from his work clothes and frequently dirty appearance that he was a construction worker.

At the conclusion of the trial, appellant urged upon the court that 'there hasn't been any evidence the defendant knew the check was forged,' to which the court replied, in effect, that the State could never prove a case if this were a requirement, since what the accused knew was known solely to him. The appellant nevertheless repeatedly insisted that to be guilty of uttering a forged check, it was necessary that the State show that he had prior knowledge that the instrument was a forgery, and on three occasions he asked the court to give an advisory instruction to that effect to the jury. The prosecutor took the position that prior knowledge of the forgery was not an element of the crime, and that to require the State to show that the appellant knew the check was forged was to impose upon it an impossible burden. Believing the State's position to be sound, the court limited its instructions to the jury with respect to the elements of the offense, as follows:

'Now, of the uttering a forged instrument, 'To utter or pass a forged instrument and with intent to defraud is a misdemeanor * * *' and so forth. It is also necessary that-referring to the defendant-he shall intend to defraud some person, but such an intent may be inferred from the circumstances as from the fact he knew the instrument-well, we will delete that part. But an intent may be inferred from the circumstances and the probable consequence of its utterance was to defraud.

'Referring to uttering, the mere offer of a false instrument with fraudulent intent constitutes an uttering, regardless of its successful consummation. To constitute the offense of uttering it is not necessary that the accused be the actual forger.'

We think the court, in so limiting its instructions, and refusing to charge the jury that prior knowledge that the check was forged was an element of the offense, committed reversible error.

The indictment returned against appellant charged that he did 'feloniously utter and publish as true a certain false, forged, altered and counterfeited' check (as herein described), with 'intent then and there to defraud, contrary to the form of the Act of the Assembly in such case made and provided'-presumably Section 44 of Article 27 of the Maryland Code which, insofar as pertinent, reads as follows:

'Any person who shall falsely make, forge or counterfeit, * * * any * * * bill of exchange * * * with intention to defraud any person whomsoever, or shall utter or publish as true any false, forged, altered or counterfeited * * * bill of exchange * * * shall be deemed a felon * * *.'

Section 612 of Article 27 provides that it shall be sufficient in any indictment for uttering 'to allege that the defendant did the act with the intent to defraud, without alleging the intent of the defendant to be to defraud any particular person.' In Reddick v. State, 219 Md. 95, 148 A.2d 384, the court held that this Section made it unnecessary to allege in any indictment for uttering, or to prove, that it was the intent of the defendant to defraud any particular person. We think it clear that the Legislature did not intend to define the elements of the crime of uttering in Section 612. We think it equally plain that the Legislature did not outline the elements of the offense in Section 44; indeed, that Section, as heretofore indicated, specifies neither knowledge that the instrument was forged, nor intent to defraud, as elements of the offense-it simply provides that any person who shall 'utter or publish as true' a false, altered, forged, or counterfeited instrument shall be deemed a felon. That we must look elsewhere for a definition of the crime is thus readily apparent.

The authorities generally agree that at common law, '(u)ttering a forged instrument is offering as genuine an instrument known to be false, with intent to defraud.' Perkins on Criminal Law (2nd Edition) page 364. See, e. g., Clark and Marshall, Crimes, (6th Edition) § 12.36; 2 Wharton's Criminal Law and Procedure (Anderson Edition) §§ 648-649; 36 Am.Jur.2d, Forgery, § 20; Annotation, 164 A.L.R. 621-685, at page 660. Indeed, as early as Commonwealth v. Searle, 2 Bin. 332, 4 Am.Dec 446 (Pa.1810), it was recognized that knowledge that an instrument was forged was a required element of the crime of uttering at common law in this country. The first post 1776 Maryland statute dealing with the uttering of a forged instrument-Acts of 1778 (March session), Chapter 17-included prior knowledge of the forgery as an element of the offense. This requirement was continued in the first general forgery and uttering statute enacted in Maryland, viz., Chapter 75 of the Acts of 1799, wherein it was provided that uttering a forged instrument 'knowing (it) to be falsely made' and 'with intention to defraud any person' was a felony. While Section 44, in its present form, does not contain any requirement of prior knowledge of the instrument's falsity, or of an intention to defraud, we think it plain that by making it unlawful to 'utter or publish as true' a forged instrument, the Legislature thereby intended to encompass all elements of the offense-long known in Maryland-of uttering a forged instrument. See Putnam v. State, 234 Md. 537, 200 A.2d 59; Baker v. State, 6 Md.App. 148, 250 A.2d 677. ²

Levy v. State, 225 Md. 201, 170 A.2d 216, decided in 1961, is the leading Maryland case dealing with the crime of uttering a forged instrument. There, the evidence showed that four days following the theft of a number of checks, an individual claiming to be Nathan Turner, accompanied by the defendant Levy, undertook to cash one of the stolen checks (#1628) in a drugstore. The check was payable to Turner, and was signed by a Raymond Gerber as maker. Levy offered no identify Turner and to endorse the check, but the proprietor said that it would not be necessary, and cashed the check. The check was ultimately returned to the druggist by the bank marked 'no authority to sign.' The evidence further showed that Levy had other of the stolen checks in his possession; that he had supplied identification cards in the name of Nathan Turner to other persons to be used in the cashing operation; and that he (Levy) shared in the proceeds realized from the cashing of several of these checks. The court, in affirming Levy's conviction for uttering the check in the drugstore, stated at page 206, 170 A.2d at page 218 that the evidence was legally sufficient 'to show the participation of Levy in the passing of check ...