State v. Amiss

• Decision Date: 29 June 1956
• Docket Number: No. 42870,42870
• Citation: 230 La. 1003,89 So.2d 877
• Court: Louisiana Supreme Court
• Parties: STATE of Louisiana v. Richard AMISS.

Page 877

89 So.2d 877

230 La. 1003

STATE of Louisiana v. Richard AMISS.

No. 42870.

Supreme Court of Louisiana.

June 29, 1956.

Rehearing Denied Sept. 28, 1956.

Lloyd C. Hoffman, New Orleans, and James H. Hynes, Baton Rouge, for appellant.

Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Frank H. Langridge, Dist. Atty., Gretna, for appellee.

VIOSCA, Justice ad hoc.

Defendant appeals from his conviction of the crime of forgery and his sentence to serve one year in the parish prison. He relies on six bills of exceptions.

By bill of information, the defendant was charged as follows:

'* * * did wilfully, unlawfully and feloniously, with intent to defraud, forge, issue and transfer as true a certain check of the Standard Fruit and Steamship Company * * *'.

This information was brought under LSA-Revised Statutes 14:72, which reads:

'Forgery is the false making or altering, with intent to defraud, of any signature to, or any part of, any writing purporting to have legal efficacy.

'Issuing or transferring, with intent to defraud, a forged writing, known by the offender to be a forged writing, shall also constitute forgery.'

Bill of Exceptions No. One was taken to the refusal of the trial judge to grant the defendant a bill of particulars. In his motion for a bill of particulars, the defendant asked that he be informed whether the State intended to prove that he not only issued and transferred a forged writing, but that he also falsely made and altered the writing. In other words, he wanted to know whether the State intended to prove that he violated both paragraphs of LSA-Revised Statutes 14:72, supra, or only one.

Bill of Exceptions No. Two was reserved to the overruling of defendant's motion to quash or elect. This bill will be discussed in connection with Bill No. One, since they are related.

Defendant contended that the bill of information was bad for duplicity, in that it contained separate and distinct crimes in the same count, to-wit: forgery by false making or altering, and forgery by issuing or transferring. Alternatively, defendant argued that the district attorney should be forced to elect whether he intended to prosecute under the false making or altering paragraph or under the issuing or transfering paragraph of the definition of the crime.

Act 136 of 1934, which amended the Louisiana criminal law of forgery, has been called a 'statutory monstrosity' (17 Tulane Law Review) and a 'veritable district attorney's nightmare' (5 L.L.R. 248). Article 740-72, which expressed the ingredients of the crime of forgery in simple language--false making or altering, with intent to defraud, issuing or transferring, with intent to defraud--was incorporated in the Louisiana Code of Criminal Law and Procedure in 1942. This article, LSA-Revised Statutes 14:72, supra, consists of two paragraphs, but it is set forth in one section. Undoubtedly, the reason for this action by the Legislature was that prior to the adoption of the Criminal Code, this Court had held that an indictment may set forth conjunctively in one and the same count the forgery and the uttering and publishing as true of the same check, since they are cumulative offenses. State v. Jackson, 163 La. 34, 111 So. 486; State v. Obey, 193 La. 1075, 192 So. 722. The early case of State v. Adam, 31 La.Ann. 717, set forth the rule that where a section of an act enumerates several offenses linked to the same act, they may be charged cumulatively in one count. State v. Markham, 15 La.Ann. 498; LSA-Revised Statutes 15:222.

LSA-Revised Statutes 15:222 ¹ provides that when cumulated in the same count such acts must be charged conjunctively. See City of Shreveport v. Bryson, 212 La. 534, 33 So.2d 60; State v. O'Brien, 226 La. 807, 77 So.2d 402.

Since false making or altering and issuing or transferring are cumulative offenses, and the bill of information met the requirements of LSA-Revised Statutes 15:222, in that it was couched in the conjunctive, there is no merit in Bill of Exceptions No. Two.

The general rule is that the granting of a Bill of Particulars is within the discretion of the trial judge. State v. Poe, 214 La. 606, 38 So.2d 359; State v. Shourds, 224 La. 955, 71 So.2d 340; State v. Michel, 225 La. 1040, 74 So.2d 207; State v. Labat, 226 La. 201, 75 So.2d 333. In view of our ruling that the bill of information was not defective, we do not find that the trial judge acted to the detriment or disadvantage of the accused. State v. Dugan, 229 La. 668, 86 So.2d 528; State v. Butler, 229 La. 788, 86 So.2d 906. Therefore, bill of Exceptions No. One is without merit.

There appears in the record the testimony of two handwriting experts. One testified that the forgeries were the handwriting of the defendant, and the other testified that the handwriting was not that of the defendant. Their testimony is attached to Bills of Exceptions Nos. Three and Four, which were taken to the refusal of the trial judge to give the following charges to the jury:

'I charge you Gentlemen that the testimony of handwriting experts, sworn to give evidence upon the comparision of signatures, should be considered by you, and acted upon by you with much caution; that you are not bound to surrender your own opinions, formed by your own comparisons, to the opinions of witnesses, however experienced.'

'I charge you Gentlemen that if, after having considered all the evidence in this case, the only evidence you have before you to determine the guilt or innocence of this Defendant is the handwriting testimony then you should acquit him for it is generally granted that, standing alone, any of the modes of proof of signatures by resemblance are worth little--in criminal cases, nothing,--their real value being as an aid to or auxiliary of other testimony, bearing on the guilt or innocence of the Defendant.'

LSA-Revised Statutes 15:390 states that the trial judge must give every requested charge that is wholly correct and pertinent. However, it is prescribed in LSA-Revised Statutes 15:384 that:

'It belongs to the jury alone to determine the weight and credibility of the evidence, but the judge shall have the right to instruct the jury on the law but not upon the facts of the case. The judge shall not state or recapitulate the evidence, repeat the testimony of any witness, nor give any opinion as to what facts have been proved or refuted.'

The testimony of expert witnesses, with respect to the writings of a defendant, is to be submitted to the jury as evidence of the genuineness of the writing in dispute. LSA-Revised Statutes 15:460.1. The experts must state the facts on which their opinions are based. LSA-Revised Statutes 15:465. If the trial judge were to comment on the testimony of the handwriting experts or the weight to be given to their testimony, such action would be equivalent to comenting on the facts--a violation of LSA-Revised Statutes 15:384. The Court is unauthorized to give undue prominence to any class of evidence. State v. McLaughlin, 138 La. 958, 70 So. 925.

There is no merit in Bills of Exceptions Nos. Three and Four. The trial judge was correct in refusing to give the requested charges. His general charge, with respect to the credibility of the witnesses, ² properly covered the subject.

The case relied on by counsel for the defendant--D'Angelo v. Nicolosi, 197 La. 797, 2 So.2d 216, 217--was a civil proceeding, in which this Court was permitted to review the facts. The statement made in that case with respect to the testimony of handwriting experts ³ is not apposite to a criminal action. The case of Temple v. Smith, 7 La.Ann. 562, in which the Court used language similar to that in the requested charge, was, likewise, a civil proceeding.

In a civil proceeding, the judge passes upon the credibility of the expert witnesses and the weight to be given to their testimony in deciding the case, whereas in a criminal action, the jury weights the testimony of the experts and decides for itself as to their credibility.

Counsel for the defendant also calls our attention to a statement made in the case of Landwirth v. Shaphran, 47 La.Ann. 336, 16 So. 839, 840, to the effect '* * * that, standing alone, any of the modes of proof of signature by resemblance are worth little,--in criminal cases, nothing, * * *.' Since that was a civil proceeding, any reference to criminal actions can be considered as obiter dictum.

The check which defendant is charged with having forged bore the signatures of two fictitious officials of the Standard Fruit and Steamship Company. They were underscored, 'Authorized Signature.'

Bill of Exceptions No. Five was reserved to the refusal of the trial judge to give Special Charge No. Three ⁴ to the jury. The gist of the charge is the averment that there can be no forgery if...