State v. McIntosh
| Decision Date | 28 January 1971 |
| Citation | 477 P.2d 228,4 Or.App. 407 |
| Parties | STATE of Oregon, Respondent, v. Helen Mc,INTOSH, Appellant. |
| Court | Oregon Court of Appeals |
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.
Before SCHWAB, C.J., and FOLEY, FORT and BRANCHFIELD, JJ.
Defendant and one Henry Joseph Gaskill were charged with the crime of knowingly uttering and publishing a forged check. They were found guilty, and defendant has appealed from the judgment of conviction.
A social security check was issued, payable to defendant's mother, but the mother died a few days prior to the receipt of the check. Defendant had been living with and caring for her mother. She had signed her mother's name to social security checks numerous times, but always with her mother's consent.
The day after the mother's funeral defendant endorsed the check, using her mother's name, and gave the check to Gaskill who went to buy groceries with it. The grocer became suspicious and did not honor the check. He called the police who then arrested Gaskill. Defendant admitted signing her mother's name, saying she thought she was entitled to do so as she was the only heir. She gave various explanations of subsequent events leading to the attempt to cash the check. She discussed the case with the district attorney, and was indicted and arrested about three weeks after Gaskill's arrest.
Defendant's first assignment of error accuses the court of failing to instruct the jury that an intent to injure and defraud is an essential element 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 Instructions, instruction No. 260.11, the instructions as a whole told the jury there could be no guilty verdict in the absence of finding that such intent had existed. The instructions must be considered as a whole. See State v. Hammick, Or.App., 90 Adv.Sh. 1409, 469 P.2d 800 (1970), State v. Keffer, Or.App., 90 Adv.Sh. 1753, 471 P.2d 438 (1970).
Defendant's second assignment of error is that the court refused to reinstruct the jury upon its request, concerning the language of the 'verdict slip.' The advisability of reinstructing the jury lies within the sound discretion of the trial court. State v. Flett, 234 Or. 124, 380 P.2d 634 (1963). Defendant did not object to the refusal of the court to give a further instruction. Only if such refusal amounted to egregious error can she now obtain relief on that ground.
Defendant argues that the request for more information indicates the jury was confused as to whether intent to injure or defraud was a necessary element of the crime charged, and that therefore we should examine the circumstances and find reversible error. Due to the inadequacy of the record, we are unable to give this assignment the attention it may well deserve because of its relationship to the first assignment. The jury sent a note to the trial judge requesting further instruction. That note was not sent to this court as part of the record. The report of the incident in the transcript does not disclose whether the judge read the note aloud and, if so, which words attributed to the judge were his own and which were contained in the jury's note. Readily apparent mistakes elsewhere in the transcript, and the incomprehensibility of what the judge allegedly said, raise doubts as to whether the judge was quoted with exactitude. We cannot determine whether there was error nor, if...
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