State v. Clark

• Decision Date: 09 April 1965
• Docket Number: No. 39012,39012
• Citation: 270 Minn. 538,134 N.W.2d 857
• Parties: STATE of Minnesota, Respondent, v. Merle Leland CLARK, Appellant.
• Court: Minnesota Supreme Court

Page 857

134 N.W.2d 857

270 Minn. 538

STATE of Minnesota, Respondent, v. Merle Leland CLARK, Appellant.

No. 39012.

Supreme Court of Minnesota.

April 9, 1965.

Rehearing Denied May 19, 1965.

Syllabus by the Court

1. An information is to be construed in the same manner as an indictment. The essential function of either is to apprise the defendant of the charge for which he is being held and tried. If it accomplishes that purpose, our statutes, as well as the case law of this state, require that the information be held sufficient.

2. Unless a defect in an information or indictment is of such a nature as to mislead the defendant as to the charge against him to his prejudice, it is not grounds for invalidating the conviction after a fair trial or a plea of guilty. To the extent that State v. Briton, 265 Minn. 326, 121 N.W.2d 577, holds to the contrary, it is overruled.

3. While violations of Minn.St.1961, §§ 620.19 and 620.10, constitute separate and distinct offenses, both constitute forgery. Where the averments in an information and the charge of the court to the jury both describe the essential elements of § 620.19, it is insignificant that § 620.10 was also mentioned in describing the nature of the offense.

4. While preparation for committing a crime is not sufficient to justify a conviction without an overt act or attempt to commit it, where it is necessary to procure an approval of a check from a person authorized to grant such approval before it can be cashed, a presentment of a forged check for such approval to that person constitutes a violation of § 620.19, which makes it an offense for a person, knowing the same to be forged or altered and with intent to defraud, to utter, offer, dispose of, or put off as true, or have in his possession with intent to utter, offer, dispose of, or put off as true, a check or similar instrument. In such case, presentment for approval constitutes a sufficient overt act to be a violation of the statute.

5. Where the evidence establishes that a check is signed in the name of a fictitious person or by a person who is unauthorized to sign it, an inference is permissible that the check has been forged. The evidence in this case sustains such inference.

6. The rule is well established that other checks cashed at or about the same time as the one upon which the charge is based are admissible to show a common scheme or plan from which an inference may be drawn that defendant had knowledge that the checks were forged and that he had presented them with intent to defraud.

7. The fact that other checks cashed at or about the same time as the one upon which the charge was based were forged may be proved by circumstantial evidence. Where the evidence goes far enough to permit an inference that they actually were forged, they become admissible, and the jury may then infer that all of such checks, as well as the one upon which the charge is based, were forged.

8. Where a felony actually has been committed, a lawful arrest may be made by a peace officer or private person. Here, the presentment of the check for approval constituted a violation of § 620.19, a felony, and thereafter a lawful arrest could be made either by a peace officer or a private person.

9. Where there is a lawful arrest, a search of the person arrested may lawfully be made, and evidence found in his possession involving the crime for which he was arrested is admissible.

10. The evidence necessary on a preliminary hearing to justify a magistrate in binding a defendant over to the district court for trial need not be as strong as that required for a conviction. All that is necessary is proof that there is probable cause that a crime has been committed and that defendant is the one who has committed it. The evidence at the preliminary hearing in this case was ample to justify a bind-over to the district court.

Douglas W. Thomson, St. Paul, for appellant.

Robert W. Mattson, Atty. Gen., J. Earl Cudd, Sol. Gen., William B. Randall, County Atty., Phyllis Gene Jones and Bertrand Poritsky, Asst. County Attys., St. Paul, for respondent.

KNUTSON, Chief Justice.

Defendant was convicted of the crime of forgery in the second degree and appeals from an order denying a motion for a new trial or, in the alternative, for a judgment of acquittal and from the judgment of conviction.

The evidence establishes that on July 9, 1962, a man representing that he was L. C. Bradford opened a checking account with Commercial State Bank of St. Paul in the name of Northern Supply Company. He signed a signature card under which Bradford was the only one authorized to sign checks drawn on the account. He made a deposit of $50 and ordered some checks for Northern Supply Company, to be mailed to 344 Hamm Building, which he represented to be the office of the company.

The records of the bank reflect the following transactions regarding this account: The initial deposit of $50 on July 9, 1962; a $5 charge for printed checks on July 16, 1962; a garnishment of $45 on July 16; and the presentation of a check for $96.02 on that date. On July 17, checks for $96.05 and $96.23 were presented but were returned on July 18 because of an unauthorized signature and insufficient funds in the account. On July 24, still another check in the sum of $96.45 was returned because the account was closed.

On July 10, 1962, a person representing himself to be Roy or Ray Anderson ordered the use of a telephone number for Northern Supply Company from John Hoffman of the Hoffman Answering Service. This concern renders services for those who retain it in answering telephone calls and matters of that kind. At the trial, Hoffman identified defendant as the person who represented himself to be Roy or Ray Anderson.

Between 11:30 a.m. and 12 o'clock noon on July 14, 1962, a person representing himself to be Lyle Bradford rented a room from Mrs. Melinda Timmers. He inquired where he could cash a check and exhibited to her a check made out by Northern Supply Company for about $90. She did not remember the exact amount. This individual left the Timmers home, and she never saw him again, but she gave him her telephone number and later received calls asking for him. Attempts to serve a subpoena on a person named Lyle Bradford at that address failed.

On the same day, between 11 and 12 o'clock noon, Mrs. Louise Wickboldt rented a room to a man who said he worked for Northern Supply Company. At the trial, Mrs. Wickboldt said that the man who rented the room from her was defendant. He never appeared again at her home, but she did receive several telephone calls for him after he left.

About 3 p.m. on July 14, 1962, defendant appeared at the Golden Rule Department Store and asked Mrs. Rose Wrobel, a credit interviewer, whether she would 'okay' a payroll check for him. It was necessary to procure the approval of Mrs. Wrobel or one of the others in charge before any check in excess of $50 could be cashed by the cashier. She said that she would approve it if it was not too large, whereupon defendant handed her a check drawn on Northern Supply Company, payable to Warren G. Bromberg, in the amount of $96.40, and signed in behalf of Northern Supply Company by Ray or Roy G. Anderson. He also handed her an identification card on which appeared his photograph and a thumb print identifying him as Warren G. Bromberg, an employee of Northern Supply Company. Mrs. Wrobel attempted to verify the firm's existence by looking in various directories but was unable to do so. Defendant then offered to give her a telephone Drassal is a St. Paul policeman who works part time at the Golden Rule store. After being called to the credit department by Mrs. Wrobel, he examined defendant's identification card and the check presented for approval and questioned defendant as to whether he had cashed any similar checks in the city in the past. He then told defendant that he would see what he could do and returned the check to defendant. Defendant accompanied him to the second floor and was asked by Drassal to follow him to the security office, which was next to the cashier's office. Drassal again obtained possession of the check and identification card, and at this point he became suspicious that there was something wrong with the check. In defendant's presence, he called Dayton's store and asked Dayton's security man and a clerk who had cashed a Northern Supply Company check to come to the Golden Rule store and see if they could identify defendant as the one who had cashed the check. Both appeared at the Golden Rule store but were unable to identify defendant. After further questioning, Drassal, in defendant's presence, called the St. Paul Police Department and then waited for Detective Frank Yost to appear. In the meantime, Drassal exhibited to defendant his policeman's badge and searched him for possible weapons but did not then remove anything from defendant's person. Detective Yost was told what had transpired and was given the check and identification card by Drassal. Yost asked defendant his true name. Defendant refused to give it to him. After questioning defendant further, Yost placed him under arrest and searched his person. The search produced two additional Northern Supply Company checks payable to Warren G. Bromberg and signed in the name of Roy or Ray G. Anderson and two identification cards bearing the name Warren G. Bromberg. Yost again asked defendant for his true name and defendant again refused, whereupon Yost called for a squad car to take defendant to the police station. When that happened, defendant wrote his name on a piece of paper, stating it to be Merle L. Clark.

number to call and told her that 'if it would be too much trouble, he could take and cash it at a corner grocery store.' Being unable to identify the firm, Mrs. Wrobel called the store's security officer, Ralph Drassal, so that he could pass upon the check. Mrs. [270 Minn. 542] Wrobel testified that the above...