State v. Seaman, WD

• Decision Date: 08 December 1981
• Docket Number: No. WD,WD
• Citation: 625 S.W.2d 950
• Parties: STATE of Missouri, Respondent, v. Charlotte SEAMAN, Appellant. 32049.
• Court: Missouri Court of Appeals

Page 950

625 S.W.2d 950

STATE of Missouri, Respondent, v. Charlotte SEAMAN, Appellant.

No. WD 32049.

Missouri Court of Appeals, Western District.

Dec. 8, 1981.

Patrick E. Richardson, Gifford & Richardson, Green City, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before MANFORD, P. J., and DIXON and NUGENT, JJ.

NUGENT, Judge.

Charlotte Seaman appeals her conviction in a court-tried case of the Class C felony of forgery in violation of § 570.090 subd. 1(4), RS Mo.1978. ¹ Mrs. Seaman's six-month sentence to the county jail was stayed and she was placed on parole for two years on the conditions that she be committed to the county jail for ten days and that restitution be made. We affirm.

In support of her claim for relief, Mrs. Seaman contends that the trial court erred in finding her guilty because (1) the information charges that the forged instrument was made payable to "Mart Super Drug," but the evidence showed that it was made payable to "Mart's," (2) the state failed to prove venue, and (3) the state failed to prove that Seaman had knowledge that the check was illegally made or altered and that she transferred the check with the purpose to defraud.

The charge arose out of Mrs. Seaman's purchase of $18 worth of merchandise at Mart Super Drug store in Brookfield, Linn County, Missouri. She paid with a $20 two-party counter check, dated "2-8-80", payable to "Mart's", drawn on the United Missouri Bank of Brookfield, purportedly by Margaret Straub. Below Ms. Straub's signature were what appeared to be the numbers "58 3273". United Missouri Bank of Brookfield returned the check to the drug store marked "account closed".

The information charged Mrs. Seaman with forgery "in that on or about the 8th day of February, 1980, in the County of Linn, State of Missouri, the defendant with purpose to defraud, transferred with the knowledge or belief that it would be used as a genuine a check dated February 8, 1980, drawn on the United Missouri Bank of Brookfield, made payable to Mart Super Drug and bearing signature of Margaret Straub, and at that time knew that Margaret Straub did not sign or authorize anyone else to sign the check."

At the trial Robert Thomas, the drugstore clerk who accepted the check, testified that he did so because he was acquainted with Mrs. Seaman. Ms. Straub testified that during the time she had lived in Brookfield, from the fall of 1976 to August, 1979, she became acquainted with the defendant when Mrs. Seaman's husband, who owned an automobile repair business, repaired her car. At that time defendant knew that Ms. Straub's telephone number was 258-3273, a number which had previously been assigned to Mrs. Seaman. Ms. Straub further testified that she had not written the check in question nor had she authorized anyone else to do so and that, although she had an account at the United Missouri Bank when she lived in Brookfield, that account had been closed in October, 1978.

The state's last witness, Elizabeth Johnson, vice president of the United Missouri Bank of Brookfield, testified that Ms. Straub had an account at that bank from March 31, 1977, to October 31, 1978. The check in question had been presented to the bank on February 11, 1980, and returned unpaid, marked "account closed." At the close of the state's case, the court overruled defendant's motion for a directed verdict of acquittal which was based on insufficient evidence of her knowledge and intent to defraud.

Mrs. Seaman, who admitted passing the check, testified that she received it through the mail in an envelope marked "Seaman's Auto, Brookfield, Missouri." No return address was shown on the envelope. According to the defendant, one Rex Hughes had brought Ms. Straub's car to Mr. Seaman for repairs and had paid for the work with a $433.18 check, defendant's Exhibit A, drawn on the Linn County State Bank and signed by Margaret Straub. That check was returned marked "no account". Subsequently, Mrs. Seaman told Rex Hughes that "when he seen Margaret to tell her to do something about that check ...." She told Hughes that she did not want another check since United Missouri Bank and First Security Bank would not let her cash customers' checks because of previous problems with them. Therefore, when the check in question came in the mail, she assumed that it was partial payment of the amount due. Mrs. Seaman did not know the present whereabouts of Rex Hughes.

In rebuttal, Ms. Straub testified that she did not know any Rex Hughes, had never given anyone by that name authority to take her car to Seaman's Auto Repair, and denied writing defendant's Exhibit A.

This court, in reviewing a court-tried criminal conviction, reviews the evidence as though a verdict of guilty had been returned by a jury. State v. Ore, 567 S.W.2d 691, 693 (Mo.App.1978). Rule 27.01(b). The reviewing court determines whether substantial evidence was adduced to support the trial court's finding, considering as true the evidence most favorable to the state and all favorable inferences stemming from the evidence. Evidence and inferences to the contrary are disregarded. State v. Turnbough, 604 S.W.2d 742, 744 (Mo.App.1980).

On this appeal Mrs. Seaman complains for the first time that the trial court erred in finding her guilty because the information charged that the forged check was payable to "Mart Super Drug" whereas the evidence showed that it was payable to "Mart's". In support of her position, defendant mistakenly relies on one statement in State v. Small, 280 S.W. 1033, 1034 (Mo.1926): "When an information undertakes to set out in what the forgery consists, it must state it truly and prove it as stated." In that case the defendant appealed the sufficiency of an information to which he had pleaded guilty. The court at 1034 held:

The forgery alleged in the information is that the accused indorsed the name of the payee, A. C. Lucas, on the front of the draft. To render it negotiable, it was necessary, under its express terms, that it be indorsed on the back of same by the payee, and that the attached voucher be dated and signed by the payee. Neither of these acts is charged as having been committed by the accused. They are averments essential to the validity of the information. A charge of forgery of an indorsement must contain such averments as will make the offense affirmatively appear. When an information undertakes to set out in what the forgery consists, it must state it truly and prove it as stated. (Citations omitted.)

Mrs. Seaman, however, is questioning a variance between the charge and the proof. Section 546.080 provides in pertinent part that:

Whenever on the trial of any felony or misdemeanor, there shall appear to be any variance between the statement in the indictment or information and the evidence offered in proof thereof, ... or in the name or description of any matter or thing whatsoever therein named or described ..., such variance shall not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall be had shall find...