State v. Conklin, 41928

• Decision Date: 28 October 1971
• Docket Number: No. 41928,41928
• Parties: The STATE of Washington, Respondent, v. Daniel W. CONKLIN, Appellant.
• Court: Washington Supreme Court

Page 805

79 Wn.2d 805

489 P.2d 1130

The STATE of Washington, Respondent, v. Daniel W. CONKLIN, Appellant.

No. 41928.

Supreme Court of Washington, Department 1.

Oct. 28, 1971.

Stock & Welch, Eugene A. Stock, Marysville, for appellant.

Robert Schillberg, Snohomish County Pros. Atty., Arnold M. Young, Everett, for respondent.

NEILL, Associate Justice.

Defendant appeals from his conviction of first degree forgery under RCW 9.44. The charge arose from the passing of a check at a gasoline service station in Lynnwood. The check was drawn against the account of a Jerry Mack and purportedly signed by him. In fact, the signature was not Mack's. Defendant entered a general plea of not guilty and at trial offered evidence and instructions on alibi, intoxication and authorization.

The assignments of error relate principally to the rejection by the trial court of offered testimony and instructions. One other assignment of error--that the trial court gave confusing instructions--will not be considered. The instructions complained of are not set forth in defendant's brief nor has he presented argument or authority in support of the assignment. ROA I--42 and ROA I--43; State v. Orange, 78 Wash.Dec.2d 579, 478 P.2d 220 (1970).

One of defendant's defenses was that, even if he committed the act of passing the spurious check, he ws so intoxicated by the use of drugs and lack of sleep that he was unable to form the specific intent to commit forgery. In support of the intoxication defense, defendant attempted to elicit testimony from a Mr. Lee as to defendant's condition. The court sustained the state's objection to this testimony as irrelevant on the basis that, as defendant had unequivocally denied his presence at the service station, he could not then produce evidence to the effect that he was present, but intoxicated. The court also refused defendant's requested instruction on the intoxication issue.

A plea of not guilty permits all defenses, excepting insanity and prior conviction or acquittal. See RCW 10.40.180; RCW 10.76.020; State v. Miller, 168 Wash. 687, 13 P.2d 52 (1932). See also RCW 10.37.033. The state must prove each necessary element of the offense charged beyond a reasonable doubt, and defendant may challenge the state's proof at every turn. See 30 Am.Jur.2d Evidence § 1172 (1967).

A necessary element of the crime of first degree forgery, as charged, is a specific intent to defraud. RCW 9.44.020; RCW 9.44.060. Intoxication such as to render the accused incapable of forming the criminal intent is a defense to the charge. RCW 9.01.114. 'Intoxication' includes that produced by drugs. State v. Dana, 73 Wash.2d 533, 439 P.2d 403 (1968). The question of the degree and effect of the asserted intoxication upon defendant's capacity to form the required intent is a question for the jury. State v. Tyler, 77 Wash.2d 726, 466 P.2d 120 (1970); State v. Mitchell, 65 Wash.2d 373, 397 P.2d 417 (1964). It was error to exclude defense testimony on this question.

Defendant's proposed instruction setting forth the terms of RCW 9.01.114 and adding that intoxication may be induced by drugs as well as alcohol was refused. While the instructions given did express that 'intent to defraud' is a necessary element, nowhere in the instructions is the jury informed as to the effect of intoxication upon the formation of criminal intent. The failure to instruct the jury on defendant's theory of the case on this point was error. See, State v. Steele, 150 Wash. 466, 273 P. 742 (1929).

Defendant also asserts that the trial court erroneously excluded testimony by Mr. Lee regarding the day on which defendant purchased an automobile. The testimony was offered in conjunction with defendant's alibi that he was engaged elsewhere in work on a friend's car at the time the check was passed. The testimony as to the date on which defendant acquired his automobile tended, under the circumstances, to establish the time when he claims to be working elsewhere on the other automobile. Such relevant testimony should have been allowed. State v. Schock, 41 Wash.2d 572, 250 P.2d 516 (1952); Bloomquist v. Buffelen Mfg. Co., 47 Wash.2d 828, 289 P.2d 1041 (1955). Accord: State v. Gersvold, 66 Wash.2d 900, 406 P.2d 318 (1965).

Defendant asserted that Jerry Mack had authorized defendant to write checks in his (Mack's) name. The trial court excluded certain testimony as to the reputation of Jerry Mack in connection with the checking account, refused defendant's requested instruction to the effect that the state must prove beyond a reasonable doubt that defendant was not authorized to sign the check, and refused defendant's requested addition to an instruction given which would have had the same effect.

Defendant's statement of the law is correct. State v. Petridge, 106 Wash. 445, 180 P. 150 (1919). In State v. Morse, 38 Wash.2d 927, 234 P.2d 478 (1951), we concluded that this requirement may be met by circumstantial evidence. The state relies upon certain language in State v. Haislip, 77 Wash.2d 838, 842, 467 P.2d 284 (1970), as indicating that the prior cases had been overruled. Such a reading is possible only if a single sentence in that opinion is taken out of context. In context, it is clear that we relied upon State v. Morse, Supra, rather than overruling the case.

Defendant should have been permitted to introduce the testimony, as it was relevant in support of his claim of authorization.

While it is true defendant's requested instruction as to authorization adequately set forth the law relating thereto, and the instructions given did not inform the jury that authorization is a valid defense, ...