State v. Allen

• Decision Date: 25 November 1933
• Docket Number: 6059
• Citation: 27 P.2d 482,53 Idaho 737
• Parties: STATE, Respondent, v. CLINT ALLEN, Appellant
• Court: Idaho Supreme Court

27 P.2d 482

53 Idaho 737

STATE, Respondent, v. CLINT ALLEN, Appellant

No. 6059

Supreme Court of Idaho

November 25, 1933

CRIMINAL LAW-INFORMATION-PROOF-VARIANCE-FORGERY-EVIDENCE-EXEMPLARS-PRESUMPTIONS-CORPUS DELICTI-PROOF.

1. Conviction under information based on statute defining forgery held not required to be reversed because proof was responsive to charge under statute prohibiting drawing and passing checks signed with fictitious name (I. C. A., secs 17-3701, 17-3704, 17-3706).

2. In forgery prosecution, paper upon which defendant wrote names he signed and indorsed on check was properly admitted as exemplar (I. C. A., sec. 16-412).

3. Evidence sustaining conviction for forgery of check (I. C A., secs. 17-3701, 17-3706).

4. Defendant who signed another's name to check, held it in possession and cashed it on day it was issued, and claimed title to and ownership thereof, was conclusively presumed to have forged check, absent satisfactory explanation of possession or forgery (I. C. A., secs 17-3701, 17-3706).

5. Inconsistent statements of defendant, insufficient to establish commission of wrong, may be considered in connection with other facts and circumstances in determining whether corpus delicti is sufficiently proved.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. John C. Rice, District Judge.

Clint Allen was convicted of the crime of forgery and appeals. Affirmed.

Affirmed.

Charles F. Reddoch, for Appellant.

Where an information is drawn under I. C. A., sec. 17-3701, and the proof offered thereon is responsive to a charge under I. C. A., sec. 17-3706, a conviction cannot be upheld for the reason that sec, 17-3701 is not broad enough to, nor does it include the matters embraced in sec. 17-3706. (People v. Elliott, 90 Cal. 586, 27 P. 433; People v. Eppinger, 105 Cal. 36, 38 P. 538; People v. Ellenwood, 119 Cal. 166, 51 P. 553.)

Bert H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for the State.

The burden is on the defendant to explain his possession of a forged instrument; and recent possession by accused of a forged instrument, and transfer or attempted transfer thereof, unless satisfactorily explained, raises a conclusive presumption that he forged it. (State v. Williams, 152 Mo. 115, 53 S.W. 424, 75 Am. St. 441, 446; State v. Allen, 116 Mo. 548, 556, 22 S.W. 792; State v. Kelley, 73 Mo. 608.)

It is within the province of the jury to make comparison of exemplars with the handwriting on the instrument alleged to be forged. (3 Jones' Com. on Evidence, 2d. ed., 2683; 1 Wharton's Ev. 712.)

HOLDEN, J. Budge, C. J., and Givens, Morgan and Wernette, JJ., concur.

OPINION

HOLDEN, J.

E. E. Evans and Sadie Evans conducted a rooming-house at Caldwell, Idaho. February 24, 1933, appellant rented a room from them for a period of three weeks, under the name of Tom Moore, for three dollars per week. Sunday, February 26, 1933, he presented a check to E. E. Evans, for the sum of fifteen dollars, drawn on the First National Bank of Caldwell, apparently signed by Lee Chess, and made payable to Tom Moore. At the time the check was presented to Evans, appellant indorsed the name of "Tom More" on the back of the instrument, and paid for three weeks' room rent, and Sadie Evans gave him six dollars in cash. At the time the check was cashed appellant stated that his name was Tom Moore, and that he received it from a sheep man for whom he had been working on the upper end of Reynolds Creek, and that the check was not payment in full, and that he needed a little money. Having his left arm in a sling, appellant placed the check on a table and Evans held the check down while appellant indorsed it. It appears from the record that appellant's true name is Clint Allen, and not either Tom More or Tom Moore. He was not seen again by the Evans after the check was cashed, until the morning of the trial, July 7, 1933.

The bank upon which the check was drawn had no account, and never had had, under the name of "Chess."

Clarence Chess testified substantially as follows: That appellant was his brother-in-law; that he had known him for twenty-five years, but that he had hardly known him for about twenty years; that he last saw him in December, 1931; that he knew a man named Lee Chess and that he was a third cousin; that Lee Chess lived at Appalachia, Virginia; that it had been twenty-five years since he last saw him, and that he did not know where he lived at the present time; that he had two brothers living in the state of Idaho; that the three brothers, himself, Ben and Jess Chess, were the only men of that name he knew in the state; that he never had had an account in said bank.

Harold Meyer, deputy sheriff of Canyon county, testified substantially as follows: That appellant told him he got the check from a man named Chess who lived on Snake River and for whom he had worked; that he asked Allen "if he would assist us or go with us to locate this man Chess, and he said he didn't think he could find the place any more"; that upon request Allen wrote the names "Tom More" and "Lee Chess" on a piece of paper; that Allen also told him he got the check for giving a man three gallons of liquor and that he would rather take a jolt than to squeal on this man because he had a family; that he asked Allen "how it happened he used Tom Moore and he said that was as good a name as any"; that "we just asked him (Allen) if he used the name Lee Chess and he said he had."

May 29, 1933, an information was filed against Allen, the charging part of which reads as follows:

"That said Clint Allen on or about the 26th day of February A. D. Nineteen Hundred and Thirty three at the County of Canyon, in the State of Idaho, then and there being and prior to the filing of this Information did then and there wilfully, unlawfully, knowingly, feloniously and fraudulently and with intent to prejudice, damage and defraud, Sadie Evans and E. E. Evans of Caldwell, Canyon County, Idaho, make and pass as true and genuine a certain instrument in writing in words and figures as follows, to-wit:

Caldwell, Idaho, 2/26 1933 No. First National Bank of Caldwell, Idaho 92-50 12 Pay to the

Order of Tom Moore $ 1500 Fifteen & no/100--Dollars.

LEE CHESS.

(Counter check, endorsed on back--Tom More.)

and he the said Clint Allen, then and there well knowing the same to be false, altered and counterfeit, did then and there on or about the 26 day of February, 1933, at Caldwell, Canyon County, Idaho, wilfully, unlawfully, falsely and fraudulently and with intent to damage and defraud Sadie Evens and E. E. Evans, did utter, publish and pass the same as true genuine to Sadie Evans and E. E. Evans."

The action was tried by the court, sitting with a jury. Appellant was convicted and judgment entered sentencing him to the penitentiary for the crime of forgery, from which judgment he appeals.

The specification of alleged errors upon which appellant relies for a reversal of the judgment of the trial court presents five principal grounds:

1. That the information is drawn under section 17-3701, I. C. A., that the proof is responsive to a charge under section 17-3706, I. C. A., and that a conviction cannot be upheld for the reason that section 17-3701, I. C. A., is not broad enough to nor does it include the matters embraced in section 17-3706, I. C. A.

2. That there is no evidence showing that the check set forth in the information was forged.

3. That there is no evidence showing that appellant passed the check knowing it to be forged with intent to defraud any person whomsoever.

4. That the inconsistent statements of the appellant are insufficient to sustain a conviction.

5. That if the name of Lee Chess was signed to the check by someone other than Lee Chess, there is no evidence showing that such other person was not authorized by Lee Chess to so sign the check.

It is contended by appellant, in support of the first ground above set forth, that where a fictitious name is signed to a check, and the check passed as that of an existing person, the person signing the fictitious name to and passing any such check must be prosecuted under section 17-3706, I. C. A., because section 17-3701, I. C. A., is not broad enough to include the offense of making and passing fictitious checks. This contention lacks merit for the reason that and as stated and admitted by appellant (a) the information in the case at bar was drawn under section 17-3701, I. C. A., and, therefore, not under section 17-3706, I. C. A., and that (b) while section 8414, C. S., formerly (which appellant must have had in mind) made the making and passing of a fictitious check punishable by "imprisonment in the state prison for not less than one nor more than fourteen years," and did not expressly constitute such an act the crime of forgery, the 1931 session of the legislature amended section 8414, omitting "is punishable by imprisonment in the state prison for not less than one nor more than fourteen years" and substituted therefor: "is guilty of forgery and punishable as provided by section 8411," C. S., now section 17-3704, I. C. A. So that since the amendment of section 8414, C. S., now section 17-3706, I. C. A., any and all of the acts mentioned in section 17-3706, as well as any and all of the acts mentioned in section 17-3701, I. C. A., constitute forgery.

The second ground above stated presents the question as to the...