Smith v. State
| Decision Date | 13 June 1952 |
| Citation | 34 A.L.R.2d 772,59 So.2d 625 |
| Parties | SMITH et al. v. STATE |
| Court | Florida Supreme Court |
D. C. Laird, Lakeland, and B. A. Meginniss of Meginniss, Thompson & Morrison, Tallahassee, for appellants.
Richard W. Ervin, Atty. Gen., and William A. O'Bryan, Asst. Atty. Gen., for appellee.
C. Maxwell Smith and Alfred Lamb were informed against in an eight count information. The State abandoned counts 1, 2, 6 and 7 and put the defendant to trial on the remaining four counts. Both defendants were found guilty on counts 4, 5 and 8 and the defendant Smith was also found guilty on count 3 which was filed only against him. An appeal has been taken from the judgment and sentence.
When this appeal was argued at the bar of this Court the Attorney General conceded that the evidence adduced at the trial was not sufficient to sustain a conviction under counts 5 and 8 of the information. We agree with his conclusion in the matter and hence will consider only count 3, which charges Smith with uttering forged instrument, and count 4, which charges Smith and Lamb as principals in the second degree to forgery.
The transactions out of which the prosecution arose involved one bank check numbered 8517, in the sum of $2,000, dated March 4, 1950, payable to the order of J. W. Hall, and drawn on the Lake Wales State Bank against the account of B. C. Cook & Sons. With respect to these transactions count 3 of the information charged that on March 4, 1950 C. Maxwell Smith falsely uttered and published to The Exchange National Bank of Winter Haven as true, the endorsement of the name 'J. W. Hall,' appearing on the back of said check, then and there well knowing that said endorsement was false, forged, altered and counterfeited. Count 4 of the information charged that on March 4, 1950 one M. L. Taylor falsely made, forged and counterfrited the name of J. W. Hall, as an endorsement on said check and that the defendants, Maxwell Smith and Alfred Lamb, were then and there present abetting, counselling, hiring and otherwise procuring the said Taylor to do and commit the said wrongful act.
The essential evidence offered by the State to support the charges is fairly stated in the brief of the Attorney General substantially as follows: One M. L. Taylor obtained from B. C. Cook & Sons a check in the sum of $2,000, drawn upon the Lake Wales State Bank, upon his representation that he had bought a crop of citrus fruit for their account. The check was made payable to one J. W. Hall for the reason that Taylor did not possess a fruit buyer's license and bond and Taylor was operating under Hall's license. Taylor did not deliver the check to Hall. Instead he took it to the Imperial Inn, an establishment operated by the defendant Smith, and there in the immediate presence of, and with a pen handed him by, Smith, endorsed J. W. Hall's name on the back of the check and received therefor from Smith the sum of $2,000. At the time of this transaction the defendant Lamb was in the building but not in the immediate presence of Taylor and Smith. After Smith had cashed the check for Taylor the latter went into a back room of the Inn and promptly proceeded to lose the money in a poker game in which the defendants Smith and Lamb were participating. Subsequently, Smith presented the check to the Exchange National Bank of Winter Haven and fraudulently represented to the bank officials that he knew J. W. Hall, the payee of said check, and that Hall's endorsement on the back of the check was genuine. In reliance upon these representations the officials approved the check and cashed it. Subsequently, payment of the check was dishonored by the drawee bank because of the forgery of the endorsement of the payee.
We do not find one shred of evidence in this statement of facts to convict the defendant Lamb of any of the charges upon which he was tried or on any other charge contained in the information. However, we find sufficient evidence to sustain the conviction as to Smith on the charge of uttering a forgery.
The trial court did not err in refusing to grant a motion for continuance made on the ground that a material witness for the defense would not be able to attend the trial because of illness. It is well settled that a continuance will not be granted because of the expected absence of a defense witness unless the motion for continuance is sworn to and shows that the matters and things about which the witness will testify are material to the cause of the defense and cannot be proven by some other available witness. Sections 916.04 and 916.05, Florida Statutes 1949, F.S.A.; Lewis v. State, 153 Fla. 836, 16 So.2d 50; Harper v. State, 160 Fla. 402, 35 So.2d 4.
The motion was not sworn to as required by statute. Moreover, all that the...
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...is unobjectionable. Wright v. State, 138 Ala. 69, 34 So. 1009: order of August 20 admissible on charge of order dated August 7. Smith v. Smith (Fla.) 59 So.2d 625; Annotation 34 A.L.R.2d 777, at State's Exhibit A, the Hallmark check itself, also had thereon: (a) in longhand--'Correction OK ......
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