State v. Carlson, 5972

• Citation: 53 Idaho 139,22 P.2d 143
• Decision Date: 13 May 1933
• Docket Number: 5972
• Parties: STATE, Respondent, v. A. C. CARLSON, Otherwise Known as JACK CLINE, and MALCOLM BENTLEY, Appellants
• Court: United States State Supreme Court of Idaho

22 P.2d 143

53 Idaho 139

STATE, Respondent, v. A. C. CARLSON, Otherwise Known as JACK CLINE, and MALCOLM BENTLEY, Appellants

No. 5972

Supreme Court of Idaho

May 13, 1933

CRIMINAL LAW - FORGERY - INFORMATION, SUFFICIENCY OF - CIRCUMSTANTIAL EVIDENCE, SUFFICIENCY OF.

1. Evidence held insufficient to show that defendants acted concertedly in committing forgery; hence defendant's statements in co-defendant's absence did not bind co-defendant.

2. To sustain conviction on circumstantial evidence, circumstances must be incapable of explanation on any reasonable hypothesis except that of guilt.

3. Defendant, if unaware when co-defendant passed check that it was forged, was not guilty of forgery, though defendant knew later that merchandise purchased with it was obtained through crime.

4. Circumstantial evidence held insufficient to support conviction for forgery.

5. Information charging making and uttering of forged check charges only single offense committed in two ways, each of which constitutes "forgery"; hence state should not be required to elect between making and uttering.

6. Evidence warranted jury's finding that check was forged and that defendant when passing check knew that it was forged.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Robert M. Terrell, Judge.

Appellants were convicted of the crime of forgery and appeal from the judgment of conviction. Affirmed, as to appellant, A. C Carlson. Reversed and new trial granted, as to appellant Malcolm Bentley.

As to appellant Bentley, judgment reversed and a new trial granted. As to appellant Carlson, judgment affirmed.

Delana & Delana, for Appellants.

Mere presence at, acquiescence in or silent consent to the commission of an offense, in the absence of the duty to act is not legally sufficient to constitute one a principal, an accessory, an aider or abettor or an accomplice. (State v. Altwatter, 29 Idaho 107, 157 P. 256.)

There must be a prima facie showing of conspiracy before declarations of co-defendants are admissible at all. (State v. Corcoran, 7 Idaho 220, 61 P. 1034, 1041; People v. MacPhee, 26 Cal.App. 218, 146 P. 522.)

To merely aid in the commission of an offense without a guilty knowledge is not a crime. (People v. Dole, 122 Cal. 486, 55 P. 581, 584, 68 Am. St. 50; State v. Corcoran, 7 Idaho 220, 61 P. 1034, 1041.)

George F. Hansbrough, Prosecuting Attorney, for Respondent.

If from all the evidence the jury is justified in concluding that one defendant is a confederate of another defendant, then the acts of one defendant committed in pursuance of a criminal design will be binding on the other and the question for the court now to decide is the sufficiency of the proof and not the order of proof. If the evidence is sufficient to connect the defendants, then the question as to whether the court erred in passing on the order of proof is immaterial. (State v. Curtis, 29 Idaho 724, at p. 729, 161 P. 578.)

WERNETTE, J. Budge, C. J., and Givens, Morgan and Holden, JJ., concur.

OPINION

WERNETTE, J.

Appellants were convicted of the crime of forgery and have perfected an appeal to this court. The information charges:

"The said A. C. Carlson, otherwise known as Jack Cline, and Malcolm Bentley on or about the seventh day of May, 1932, at the county of Bingham, and the State of Idaho, and prior to the filing of this information, did then and there willfully, unlawfully, feloniously, knowingly, falsely, and fraudulently, and with intent to prejudice, damage and defraud J. N. McCracken stores of Blackfoot, Idaho, make, alter, forge, and counterfeit a certain instrument in writing, in the words and figures following, to-wit:

"Blackfoot, Idaho, May 7, 1932. No.

"1st National Bank. 92-63

12

"Pay to the order of Jack Cline Twenty-seven and No/100 Dollars for Pelts.

"SIDNEY SHOELLS.

and which instrument was then and there endorsed on the back 'Jack Cline'; and they, the said A. C. Carlson, otherwise known as Jack Cline, and Malcolm Bentley, then and there well knowing the same to be false, altered, forged, and counterfeited, did then and there, to-wit, on the seventh day of May, 1932, at Blackfoot in the said county of Bingham, willfully, feloniously, knowingly, and fraudulently, and with intent to prejudice, damage, and defraud said J. N. McCracken stores, utter, publish, and pass the same as genuine and true to J. N. McCracken Stores, in Blackfoot, Idaho. . . ."

Where necessary we will refer to the facts and the record in considering the various assignments of error complained of.

We will first consider the case as to appellant Bentley. It is conceded that his conviction was based entirely on circumstantial evidence.

Appellants shortly after the commencement of the trial moved that the state be required to elect whether it would stand on the charge of making, altering, forging and counterfeiting the check set out in the information, or for uttering, publishing and passing the same. The court reserved its ruling until the conclusion of the state's case, at which time the appellants renewed the motion, which was granted by the court; the state electing to stand on the charge with reference to the uttering, publishing and passing of the check. At the close of the state's case, and after the state was required to elect on which charge it would stand, appellants, jointly and severally, moved the court to dismiss the action and discharge the defendants, for the reason that the state had failed to make out a prima facie case, or any case sufficient to warrant the court in submitting the same to the consideration of the jury; pointing out in the motion the failure of proof in that regard. The motion was overruled. Appellants' specifications of error, numbers 1 and 2, are as follows:

"I.

"The Court erred in denying the motion of the defendant, Malcolm Bentley, to dismiss the action and discharge said defendant.

"II.

"The verdict of the Jury and the judgment of the Court is against the law, because the evidence is insufficient to support the verdict of the Jury, and insufficient to support the judgment of the Court against the defendant, Malcolm Bentley in the following particulars, to-wit:

"(a) There was no evidence connecting or tending to connect the defendant, Malcolm Bentley with the passing or uttering of the alleged forged check set forth in the information, or any other forged checks.

"(b) There was no evidence that the defendant, Malcolm Bentley either aided or abetted in the passing or uttering of said check, or any checks.

"(c) There was no evidence that the defendant, Malcolm Bentley did anything to defraud the C. M. McCracken's Stores.

"(d) There was no evidence that the defendant, Malcolm Bentley had any knowledge that said check, or any checks were forged or false in any particular."

Upon a careful examination of the record we find the only evidence offered to connect appellant, Bentley, with the alleged crime, is substantially as follows: Both appellants were observed by the witness Norman Loeppke, looking in the window of McCracken's Store at Blackfoot, Idaho, about 7:30 P. M. on May 7, 1932, for a period of about one-half hour; Carlson then entered the McCracken Store and Bentley left; later that evening, about 9:30 o'clock Bentley was again observed in front of C. C. Anderson's Store in Blackfoot, from which place he walked to the front of Dustin's Drug Store, where he stood for a period of from ten to fifteen minutes, where he was watching, very closely, the Safeway Skaggs Store across the street, at which time he was holding a couple of boxes, such as ofttimes contain underclothes or union suits, and also a package rolled up in brown paper. From the last-named place he went to the front of the McCracken Store, where he again looked in the windows; he then left and was not observed any further that evening. The next day both appellants were placed under arrest near Idaho Falls, Idaho, at which time they were wearing new shoes, corduroy pants, and Bentley was wearing new underclothes, all were of the same kind and make that were sold to Carlson the evening before at the McCracken Store and other business places in Blackfoot, where Carlson paid for the articles so purchased with the alleged forged check and other checks, claimed to be forgeries. The identification marks, consisting of size, stock number and name of manufacturer, in the new shoes which both appellants were wearing at the time of the arrest, had been removed. The above is the only evidence offered to connect Bentley with the crime, other than some statements made by Carlson while making the purchases at the various stores on the evening of May 7th, not in the presence of Bentley.

When Carlson entered the McCracken Store, about 7:30 on the evening of May 7th, after having been seen with Bentley looking in the window, he purchased a bill of goods from Norman Loeppke, who worked in the store, consisting of two shirts, two pairs of overalls, and two pairs of shoes, the total cost of which was $ 12.28. He gave in payment the check for $ 27 set out in the information, receiving the balance in cash. He stated to Loeppke that his name was Jack Cline, indorsing the name of Jack Cline on the back of the check. Loeppke, at that time, was familiar with the signature of Sidney Shoells of Blackfoot, Idaho; he believed the signature to be the genuine signature of Sidney Shoells. Part of the testimony of Loeppke, with regard to the check and the conversation he had with Carlson, is as follows:

"Q. And what did you do with this check?

"A. Took it,--it wasn't indorsed,--I handed it back to him and I said to him, I says, 'Who is Sidney Shoells?' He says, 'Don't you know him? He is a pelt buyer, or a fur...