State v. McGowan
| Decision Date | 30 October 1959 |
| Citation | 218 Or. 455,345 P.2d 831 |
| Parties | STATE of Oregon, Respondent, v. William McGOWAN, Appellant. |
| Court | Oregon Supreme Court |
Dan M. Dibble, Portland, argued the cause and filed briefs for appellant.
David Robinson, Jr., Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was Charles E. Raymond, Dist. Atty., Portland.
Before McALLISTER, C. J., and SLOAN, O'CONNELL and KING, JJ.
This is an appeal by the defendant, William McGowan, from his conviction of the crime of knowingly uttering and publishing a forged bank check, in violation of ORS 165.115.
The principal question to be decided is: Was there sufficient proof of intent and knowledge offered by the state to sustain a conviction of the defendant?
During the month of October, 1957, Winlock Hendricks had a check book containing blank checks on the head office of the United States National Bank of Portland, Portland, Oregon, in the glove box of his car. Mr. Hendricks' name and address were printed on the checks. On or about the 12th day of October, 1957, he discovered that a hole had been punched up through the bottom of the glove box of his car and that the blank checks were gone.
A check made out on a form similar to blanks missing from Mr. Hendricks' car was tendered by William McGowan, the defendant, to a clerk at Meier & Frank's store in Portland, Multnomah County, Oregon, on or about October 8, 1957, in payment of a pair of lady's shoes, priced at $4.99. The check was in the amount of $38, and the defendant received $33.01 in cash from the Meier & Frank clerk, in addition to the shoes.
The check was fully made out and endorsed at the time it was presented at the store.
The indictment returned against the defendant, omitting the formal portions, reads as follows:
'The said William McGowan on the 8th day of October, A. D. 1957, in the County of Multnomah and State of Oregon, then and there being, did then and there unlawfully and feloniously with intent to injure and defraud, knowingly utter and publish as true and genuine to Meier & Frank Co., Inc., a corporation, a certain false and forged bank check, in words and figures as follows:
'Winlock Hendricks
'16746 S. E. Main Street
24-11/1230
'Portland, Oregon, 10/7 1957
'Pay to the order of William McGowan
Thirty Eight dollars
$38.00 Dollars
'Head Office
'THE UNITED STATES NATIONAL BANK of Portland
Winlock Hendricks
'Portland, Oregon
The said William McGowan then and there well knowing the said bank check to be false and forged, contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon.'
He entered a plea of not guilty to this indictment, and at his own request went to trial before the court without a jury.
The state put on its case and rested. The defendant then moved for a directed verdict of acquittal. That motion was denied by the court and the defendant then rested. The defendant did not testify and did not call any witness in his defense.
Later the case was reopened for more testimony in behalf of the state, and both parties thereafter again rested their case.
The defendant sets forth only one assignment of error; namely:
'The court erred in denying defendant's motion for acquittal and in denying his motion to set aside the judgment and grant him a new trial.'
The motion and ruling on the motion for acquittal were not renewed after the case was reopened and rested again, but it will be considered as though it had been renewed and again denied, as the matters raised therein would have to be proved beyond a reasonable doubt before the defendant could be found guilty. The motion for a new trial raised the same issues, so we are confronted with the question: Was there sufficient evidence to sustain a conviction?
The material elements of the indictment, briefly stated, are:
1. Place
2. That the bank check was false and forged
3. That defendant did knowingly utter and publish the check as true and genuine to Meier & Frank Co.
4. With the intent to injure and defraud
There was direct testimony that the check was cashed in Multnomah County, Oregon. Mr. Winlock Hendricks testified that he did not sign the check nor authorize anyone to sign his name, and that his signature was forged. There was no denial of that testimony, and thus the first two material elements of the indictment are proved.
In fact, the defendant concedes in appellant's brief as follows:
'The defendant concedes that all the elements of the alleged offense were thus established with the exception of his alleged intent to injure and defraud and his alleged knowledge that the check had been forged.'
He admits uttering the check.
It is usually not possible to prove knowledge of a false or forged instrument or intent to injure and defraud by direct testimony. That would usually require a reading of the defendant's mind at the time of the alleged act. All the acts, facts and circumstances in evidence may be considered in determining knowledge and intent.
Underhill's Criminal Evidence (5th ed.) p. 1776, § 773, says:
The same authority on p. 1778, rule 774, says:
'Evidence of similar forgeries is admissible to show a uniform course of acting from which guilty knowledge and criminal intent may be inferred.'
In this case we have in evidence state's exhibit No. 4, a check for $18 in which William McGowan was the payee and the name of Winlock Hendricks was forged as the maker.
This check was presented by the defendant, William McGowan, to Barney Kuntz, an appliance salesman for Lampus Company, Portland, Oregon, in an effort to cash it. On being questioned, the defendant told Mr. Kuntz that he had received the check for doing some hauling.
Mr. Kuntz became suspicious and telephoned Mr. Hendricks at the phone number listed on the check and was told, Mr. Kuntz then informed the defendant that he could not cash the check for him and asked him to wait just a moment until he made another phone call, thinking he...
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State v. Cruse
...by other fraudulent means that evidence of other similar transactions is admissible to prove criminal intent. See State v. McGowan, 218 Or. 455, 459, 345 P.2d 831 (1959); State v. Ankeny, 185 Or. 549, 559, 204 P.2d 133 (1949); State v. Cooke et al., 130 Or. 552, 568, 278 P. 936 (1929); Stat......
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State v. White
...P.2d 612 (1968); State v. Holbert, 242 Or. 228, 408 P.2d 941 (1965); State v. Cruse, 231 Or. 326, 372 P.2d 974 (1962); State v. McGowan, 218 Or. 455, 345 P.2d 831 (1959). However, defendant contends that there was not sufficient proof of identity to connect him with these allegedly criminal......
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State v. Lehmann
...on the date of the charged offense, Oregon cases have not distinguished between prior and subsequent offenses. State v. McGowan, 218 Or. 455, 345 P.2d 831 (1959) (knowingly uttering and publishing a forged bank check); State v. Ankeny, 185 Or. 549, 204 P.2d 133 (1949) (larceny by bailee); S......
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State v. McIntosh
...of the crime charged. The parties agree that such intent must be found by the jury in order for it to convict. See State v. McGowan, 218 Or. 455, 345 P.2d 831 (1939). While the questioned instruction does not as clearly spell out that element as does the Oregon State Bar's Uniform Jury Inst......