State v. Gorham

Decision Date13 October 1937
Docket Number5809
Citation93 Utah 274,72 P.2d 656
CourtUtah Supreme Court

Appeal from District Court, Third District, Salt Lake County; Roger I. McDonough, Judge.

C Gorham was convicted of forgery by uttering and passing a draft, known to be false and forged, as genuine, with intent to defraud, and he appeals.


Gustin & Richards, of Salt Lake City, for appellant.

Joseph Chez, Atty. Gen., and Zelph S. Calder, Deputy Atty. Gen., for the State.

HANSON Justice. FOLLAND, C. J., and MOFFAT, J., WOLFE, Justice concurring. LARSON, Justice, dissenting.


HANSON, Justice.

Originally, the defendant, C. Gorham, was charged before the committing magistrate and by the information filed by the district attorney with the crime of forgery in two counts; the first count alleging that he forged a bank draft in words and figures as follows:

"The Continental National Bank of Salt Lake City

"Salt Lake City, Utah, Dec. 30, 1932

"At Sight Pay to the order of C. Gorham $ 19.50 Nineteen 50/100 Dollars

"Value Received and charge to account of with exchange.

"Sam L. Bringhurt,

Murray, Utah.

"To Continental Nat. Bank, Salt Lake City, Utah"

--by forging and counterfeiting the name of Sam L. Bringhurt. The second count charged him with uttering and passing said draft as genuine with intent to defraud, knowing the same to be false and forged. He was convicted on the second count, and appealed to this court from the judgment of conviction. The judgment was reversed by us and the matter remanded to the district court of Salt Lake county for a new trial. State v. Gorham, 87 Utah 86, 48 P.2d 447.

Some time after the former appeal and before the time of the second trial, a letter "s" had been inserted by pen and ink in the name "Bringhurt" as it appeared in the information in both counts, so that the name read "Bringhurt" wherever it appeared in each count. At the commencement of the retrial of the case, counsel for defendant called the court's attention to this ink insertion. Upon motion of the prosecution these ink insertions were ordered stricken so that the information was restored to its original wording and lettering. No exception was taken to this ruling of the court.

Before the ink letters "s" were stricken, defendant moved for a dismissal of the first count on the ground that at the former trial defendant had been convicted on the second count only, and could not be retried on the first count without being put in jeopardy twice on the first count, and the verdict of the jury on the first trial was res adjudicata as to the first count. Defendant also moved for a dismissal of the entire information on the ground that by the insertion of the letter "s" in ink, as above indicated, the information had been so amended as to be at variance with the complaint before the committing magistrate and with the information upon which defendant had been arraigned and to which he had pleaded not guilty. The trial court denied both motions.

After the prosecuting attorney had made his opening statement to the jury, defendant moved for a dismissal on the ground that such statement did not disclose facts sufficient to constitute a public offense, in that the name charged as having been forged was the name "Sam L. Bringhurt," whereas the prosecuting attorney stated that the state would prove that a forgery was committed by having Samuel E. Bringhurt testify that the signature "Sam L. Bringhurt" was not his signature.

Just before the state rested its case, it was permitted to file an amended information charging defendant with the crime of forgery in two counts. Only as to the first count did the amended information differ in any particular from the original information; the second count in both the original and amended information being exactly the same. The amendment to the first count charged that the defendant "did forge and counterfeit the name and signature of Samuel E. Bringhurst by then and there signing the name Sam L. Bringhurt to said draft"; that the name Sam L. Bringhurt on the draft and Samuel E. Bringhurst represented the same person, and in signing the name Sam L. Bringhurt to said draft, defendant intended to sign the name Samuel E. Bringhurst.

Under the forms of verdict submitted to the jury, they were permitted to find defendant guilty of forgery as charged in the first count, or guilty of forgery as charged in the second count, or not guilty. The jury brought in a verdict finding defendant guilty of forgery as charged in the second count of the information. Defendant appeals from the judgment of conviction entered on such verdict. We have detailed the proceedings had during the trial, as defendant relies upon errors which he asserts occurred through the action of the court in such proceedings. We shall proceed to dispose of the questions raised by defendant, and refer to the evidence as we proceed.

Defendant first contends that the court, by permitting the state to amend its information after the trial had commenced, violated sections 7, 12 and 13 of article 1 of the Constitution of Utah, in that said amendments charged an offense different from that upon which the defendant had been arraigned or had had a preliminary hearing. It is claimed that striking the ink letter "s" from the name "Bringhurst," where such name appeared in the information, was an amendment having the effect of changing the crime charged. There is nothing in the record to show that the insertion by ink of the letter "s" had been done pursuant to an order of the court by way of amendment. So far as appears, the insertion of that letter was without authority. The removal of that letter simply restored the information to its original condition, and cannot be said to be an amendment. Defendant had been arraigned and had his preliminary hearing on the charge contained in the information as it stood with the letter "s" stricken out. No constitutional right of defendant was violated by restoring the information to its original condition.

It is argued that permitting the state to amend the information to allege that defendant was guilty of forgery by forging the name of Samuel E. Bringhurst by signing the name Sam L. Bringhurt, that Samuel E. Bringhurst and Sam L. Bringhurt represented the same person, and that defendant in signing Sam L. Bringhurt intended to sign the name Samuel E. Bringhurst, changed the offense and the nature of the offense charged. We deem it unnecessary to enter into any discussion of the question thus raised, since this amendment affected the first count only, and the jury specifically found, by the form of its verdict, defendant guilty of the crime of forgery only as charged in the second count. The defendant, therefore, was not convicted of having falsely forged the draft either as originally alleged or as alleged under the amended information. To find defendant guilty under the second count, it was not essential that defendant should have personally affixed the forged name to the draft. State v. Allen, 116 Mo. 548, 22 S.W. 792. Under section 8270, Comp. Laws Utah 1917, now section 103-24-1, R. S. Utah 1933, the crime of forgery as there defined may consist of the making of the false instrument or of the passing of an instrument known to be false; or both making and passing such instrument. State v. Jones, 81 Utah 503, 20 P.2d 614. The doing of either of such acts constitutes the crime of forgery, and even though the proof fails to show that the defendant personally falsely forged the instrument, it may be sufficient to show the passing of an instrument known by him to be false or forged, and this would constitute the crime of forgery. The different acts defined by the statute as constituting forgery may be alleged in the same count or in separate counts. State v. Jones, supra; State v. Green, 89 Utah 437, 57 P.2d 750. A finding of guilty of the act described in the second count is not a finding of guilty of the act described in the first count, and does need a finding of guilty of the act charged in the first count to support it. So far as the first count and any prejudice to defendant from the amendment thereof are concerned, defendant cannot be heard to complain on this appeal, as he was not convicted under said count. "A conviction and judgment upon one of several counts with no verdict upon the others, is an acquittal as to the other counts." 16 C. J. 1107. We think such rule is especially applicable where, as here, the jury were given separate forms of verdicts covering each count. It is clear that the jury did not consider defendant guilty as charged in the first count.

What has been said disposes of defendant's contention that the court erred in denying his motion to strike the first count and his motion to dismiss the entire information on the ground of variance between the information as filed and the complaint upon which he was held for trial. It likewise disposes of defendant's objection to the third instruction of the court to the jury defining the crime charged in the first count, as amended. As to defendant's motion to dismiss the information after the opening statement had been made to the jury by the prosecuting officer, we have examined that statement and are convinced that the trial court committed no error in denying said motion.

Defendant next urges that the verdict of the jury is against the law as declared by the court in its instructions Nos. 7 and 8. Instruction No. 7 informed the jury that they could not convict defendant of the crime charged in the first count unless they found that defendant wrote the said draft and was not authorized to write and execute the same by Sam L Bringhurt. Since defendant was not convicted of the crime charged in the first...

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9 cases
  • State v. Turner
    • United States
    • Supreme Court of Utah
    • May 6, 1938
    ...... of the shooting but Miller himself very provocative.". . . [95. Utah 147] Since defendant was found guilty of voluntary. manslaughter and not of murder in either first or second. degree, he is hardly in a position to complain. State v. Gorham , 93 Utah 274, 72 P.2d 656. . . Appellant. has argued that part 3 of instruction No. 10, given to the. jury by the court, was erroneous in that the court "in. effect advised the jury that it was the duty of the defendant. to retreat," whereas the defendant was in his own. ......
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