State v. Meeks

• Decision Date: 15 June 1954
• Docket Number: No. 48480,48480
• Citation: 245 Iowa 1231,65 N.W.2d 76
• Parties: STATE v. MEEKS.
• Court: Iowa Supreme Court

Page 76

65 N.W.2d 76

245 Iowa 1231

STATE v. MEEKS.

No. 48480.

Supreme Court of Iowa.

June 15, 1954.

Rehearing Denied Sept. 24, 1954.

James Clyde Meeks, pro se.

Leo A. Hoegh, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., and Richard M. Ackley, County Attorney, Wapello County, Ottumwa, for appellee.

LARSON, Justice.

The defendant James Clyde Meeks, alias L. H. Stone, was indicted on the 10th day of November, 1953, by the Wapello County Grand Jury charged with the crime of uttering a forged instrument with intent to defraud, in violation of Section 718.2 of the 1950 Code of Iowa, I.C.A. The facts are not in great dispute. Defendant had opened a checking account in The Farmers and Merchants Savings Bank of Ottumwa, Iowa, on or about October 15, 1953, and had made deposits of $430 and one withdrawal of $300 prior to October 23, 1953. On the morning of that date he made a second withdrawal by check made payable to cash of $125, leaving a balance in his account of only $5. Just before closing hours on the same day he deposited to his account a check in the amount of $415 which was dated October 21, 1953, made payable to L. H. Stone, drawn on the Burlington Bank and Trust Company of Burlington, Iowa, and purportedly drawn and signed by one W. H. Barton. The receiving teller's suspicions were aroused, and a telephone call to the Burlington bank confirmed the fact that no person by the name of W. H. Barton had an account there. Peace officers were notified and they assembled at the Ottumwa bank the next morning to investigate the matter. At about 9:30 A.M. defendant came to the bank, withdrew $300 in small bills by issuing a check for cash for that sum. After leaving the bank defendant was apprehended and invited to the police station for questioning. From the method of operation he was suspected of being a wanted false check artist. A search of his person revealed that he had some $976 in his pockets and pinned in various places on his underclothing. Among his effects was a key to a locker at the Ottumwa bus depot. The locker contained a grip which was brought to the station and opened in defendant's presence. In addition to clothing it contained various instruments used by a typical check artist and they appear herein as Exhibits P-15 through P-36 inclusive. They will be referred to later. The defendant had on his person a tear gas gun, and he tried to destroy some already-prepared checks and a deposit slip for another Ottumwa bank. These items included a check to Stone from one B. D. Miller for $375 drawn on the Burlington Bank and Trust Company, appearing as Exhibit P-5, a deposit slip for the Fidelity Savings Bank of Ottumwa as Exhibit P-6, and a check drawn for cash on said bank in the sum of $250 as Exhibit P-7. They had not yet been presented at the Fidelity Savings Bank.

On the 12th day of November defendant appeared in court for arraignment, and as he was without counsel he was given a copy of the indictment and informed by the court of his right to have counsel appointed for him. He declined, stated he was charged under his true name, and entered his plea of not guilty. The cause was then assigned for trial on November 23, 1953. On November 18, 1953, defendant having failed to obtain counsel was brought before the court, where he stated that if he could not have one Charles Bookin appointed as his counsel, the said Bookin being scheduled to start another specially assigned case at Fairfield at that time, and that 'if he could be furnished with photostatic copies of' certain checks, he 'wished to conduct his own trial and did not desire the court to appoint any counsel for him.' The requested copies were furnished defendant, acknowledged by his signature in the record, and the trial opened as scheduled on November 23, 1953.

Defendant at that time presented a motion for a change of venue and a motion for a continuance, both of which were overruled by the court. The state presented its evidence, and the defendant quite ably defended himself and presented his objections and preserved his exceptions. However, his motion for a directed verdict at the close thereof was overruled. Defendant then did not take the stand nor call any witnesses, but did introduce one Exhibit D-1 which was a photostatic copy of a signature card signed by him at the time he opened the account in the Farmers and Merchants Savings Bank in Ottumwa, Iowa.

After the court had given its instructions, which were not objected to by the defendant, the jury retired and shortly returned a verdict finding the defendant guilty as charged. Defendant's motion for a new trial, as well as a later motion to modify the court's judgment sentencing defendant for an indeterminate period not to exceed ten years in the Iowa State Men's Penitentiary at Fort Madison, Iowa, were overruled, and he is now incarcerated in that institution. He lists 18 assignments of error, and fails for the most part to state propositions and list authorities in his brief and argument, of which the state complains, but we feel under the conditions his contentions are argued with sufficient clarity to warrant and deserve our consideration. Such assignments as we consider of merit we will discuss.

I. Perhaps defendant's principal contention is found in his 15th and 16th assignments wherein he maintains that the state failed to prove that he uttered a forged check as charged in the indictment. He argues that 'to constitute the offense of 'uttering a forged check' the proof must show the check is drawn on an actual account, that the check was written without authority of the person whose name is forged, and, with intent to defraud thereby.' He reasons that because W. H. Barton, the purported and unknown drawer of the check on the Burlington bank, was not a depositor, the check cannot be classified as a forgery but must be classified as a false check within the meaning of Section 713.3, Code of Iowa 1950, I.C.A. He argues that if the state's evidence is to be believed and it is determined that he wrote the entire $415 check himself including the indorsement, he would be guilty of no worse offense than the false drawing or uttering of a check, and that he may assume any name he wishes, including Stone, Barton or Miller. It may be conceded that the acts done could also have constituted another offense than the one charged by the state, but with that question we are not here concerned. He was charged with the violation of Section 718.2 of the Code of Iowa 1950, I.C.A., which provides as follows:

'If any person utter and publish as true any record, process, certificate, deed, will, or any other instrument of writing mentioned in section 718.1, knowing the same to be false, altered, forged, or counterfeited, with intent to defraud, he shall be imprisoned in the penitentiary not more than ten years, or imprisoned in the county jail not exceeding one year, or fined not exceeding one thousand dollars.'

Forgery has been defined to be the false making or material alteration, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability. State v. Sherwood, 90 Iowa 550, 58 N.W. 911; State v. Van Auken, 98 Iowa 674, 68 N.W. 454. Also see 37 C.J.S., Forgery, § 1, p. 31; 23 Am.Jur. 676, Forgery, § 2.

We have also said many times that 'forgery' and 'uttering a forged instrument' are separate and distinct crimes. See State v. Solberg, 214 Iowa 333, 242 N.W. 84; State v. Blodgett, 143 Iowa 578, 121 N.W. 685; State v. McCormack, 56 Iowa 585, 9 N.W. 916.

It is well settled in most jurisdictions, including Iowa, that the offense of 'forgery' may be committed even though the name used by an assumed or fictitious one when it is also shown that it was used with the intention to defraud. See 37 C.J.C., Forgery, § 10, p. 39. We so held in McCornack v. Central State Bank, 203 Iowa 833, 211 N.W. 542, 52 A.L.R. 1297, and in American Express Co. v. Peoples Savings Bank, 192 Iowa 366, 181 N.W. 701, stating in effect that the alleged name need not be that of any person in existence to constitute 'forgery'. In this connection, however, the evidence disclosed that one William H. Barton of New London, Iowa, had had an account with the Burlington bank during the years 1937 and 1938, but it was closed at his death in March, 1938. This contention of defendant is best answered, however, by our pronouncement in State v. Sherwood, supra, later quoted with approval in State v. Carter, 222 Iowa 474, at page 477, 269 N.W. 445, at page 447. We said:

"The offense of uttering and publishing is proved by evidence of offering to pass the instrument to another person, declaring or asserting, directly or indirectly, by words or actions, that it is good."

Also see State v. Weaver, 149 Iowa 403, 128 N.W. 559, 31 L.R.A.,N.S., 1046; State v. Sherwood, supra; State v. Calkins, 73 Iowa 128, 34 N.W. 777.

Here then defendant offered to pass and did pass the check for $415 knowing that it was not good, that it was not what it purported to be, namely, an instrument drawn by one person to the order of another, and that it was issued with an intent to defraud, first by obtaining credit and later cash from the bank. Here the defendant obtained $300 cash from the bank by cashing a check on a valueless credit known to be such when the deposit was made.

II. We said in State v. Weaver, supra, that under this statute, formerly Section 4854, Code of 1897, it is not essential that the instrument be actually transferred to or be accepted by another as genuine, it being sufficient that such instrument be offered as genuine with intent to defraud. Also see State v. Calkins, supra. Thus we see it mattered not that the check had been deposited for collection as contended by the defendant. His later acts of trying to obtain money on the strength of that deposit before in the usual course of trade it could be discovered that it was valueless, was material...