State v. Singh

• Decision Date: 26 October 1966
• Docket Number: CA-CR
• Citation: 419 P.2d 403,4 Ariz.App. 273
• Parties: STATE of Arizona, Appellee, v. Daun S. SINGH, Appellant. 176.
• Court: Arizona Court of Appeals

Page 403

419 P.2d 403

4 Ariz.App. 273

STATE of Arizona, Appellee, v. Daun S. SINGH, Appellant.

1 CA-CR 76.

Court of Appeals of Arizona.

Oct. 26, 1966.

Rehearing Denied Nov. 29, 1966.

Review Denied Dec. 28, 1966.

Darrell F. Smith, Atty. Gen., by Philip W. Marquardt, Asst. Atty. Gen., for appellee

Johnson & Shaw, by Joseph P. Shaw and Marvin Johnson, Phoenix, for appellant.

CAMERON, Judge.

This is an appeal from verdicts and judgments of guilt to an information charging two counts of forgery (§ 13--421 A.R.S.).

We are called upon to determine:

(1) whether the presenting of a document to a notary public for acknowledgement of a forged signature is 'passing', 'publishing' or 'uttering' within the meaning of the Arizona forgery statute (13--421 A.R.S.),

(2) whether the defendant was materially prejudiced by the granting of the motion of the County Attorney made at the close of the evidence to amend Count II of the information to allege a different recipient of the forged document than the recipient named in the information as previously filed, and

(3) whether the defendant was materially prejudiced by the endorsing upon the information of thirty-five additional witnesses five days prior to defendant's trial.

The facts necessary for a determination of this matter are as follows: An information was filed 29 July, 1965, in the Superior Court of Maricopa County accusing the defendant of the crime of forgery in two counts reading as follows:

'That the said DAUN S. SINGH on or about the 14th day of April, 1965, * * * did then and there with intent to defraud, pass or utter or publish as true and genuine to LUCILLE SULLIVAN, an instrument, to wit: a warranty deed, dated April 14th, 1965, the said LUCILLE SULLIVAN being then and there an employee of the Valley National Bank, Mesa Branch; warranty deed naming ALFRED H. NICHOLS, as grantor and WILLIAM MILES, SR., as grantee, purportedly signed by ALFRED H. NICHOLS, he, the said DAUN S. SINGH, then and there well knowing the same purported signature of ALFRED H. NICHOLS to be a forgery, all contrary to the provisions of Section 13--421 A.R.S., 1965. * * *'

And Count II:

'That the said DAUN S. SINGH on or about the 16th day of April, 1965, * * * did then and there with intent to defraud, pass or utter or publish as true and genuine to DWAYNE MOORE, to wit: a supplemental escrow instruction purportedly signed by ALFRED H. NICHOLS, the said defendant then and there well knowing the same purported signature of ALFRED H. NICHOLS to be a forgery, all contrary to provisions of Section 13--421 A.R.S., 1965.'

Endorsed upon this information pursuant to Rule 153, Rules of Criminal Procedure, 17 A.R.S., were the names of three witnesses. On 10 August, 1965, the defendant entered a plea of not guilty as to both counts, and did not waive the 60 day trial period as provided in Rule 236, Rules of Criminal Procedure, 17 A.R.S. The matter was set for trial to commence 14 September, 1965, and on 8 September, 1965, the County Attorney endorsed upon the information the names of thirteen additional people as witnesses. On 9 September, 1965, twenty-five more names were endorsed upon the information as witnesses. Trial commenced 14 September, 1965, and the defendant timely objected to the calling of the witnesses whose names had been thus endorsed. The defendant did not request a continuance for the purpose of interrogating said witnesses. 'Escrow Number 05000870--2. This is to instruct you to release to Daun S. Singh, 7532 East Portland Avenue, Scottsdale, Arizona, the amount of $84,000 out of the above numbered escrow.

The testimony adduced at the trial indicates that in March of 1965, Mr. Dwayne Moore, a Phoenix real estate salesman, met with the defendant at the defendant's request to discuss the sale of some farm land owned by Alfred H. Nichols. The defendant purported to represent Mr. Nichols and to be his partner. He told Moore that Nichols owed him $80,000 as damages arising out of the partnership, and that Nichols had agreed to pay the defendant out of the proceeds of the sale of the Nichols property. Moore procured a prospective buyer who, after negotiations, agreed to pay $144,000 for the property. During the negotiations the defendant handled all matters for his alleged principal. All necessary papers and documents to effectuate the sale were delivered to Phoenix Title and Trust Company as the escrow agent, and the alleged sale was completed. The purchaser deposited the sums necessary into the escrow, and a supplemental escrow instruction was also delivered to Phoenix Title and Trust which read as follows:

/s/ Alfred H. Nichols'

A check in the amount of $84,000 drawn on the escrow account of Phoenix Title and Trust Company was made out to Daun S. Singh and delivered to him. The check in evidence shows that it was endorsed 'Daun S. Singh'. At the trial, defendant, through his attorney, stipulated the signatures of Alfred H. Nichols on the escrow papers, instruction and deed were forgeries and in fact tracings. Defendant, through his attorney, denied that he did the tracing. Defendant's attorney also admitted:

'We admit the defendant got that check, cashed that check, got that money.'

Although the testimony of the notary public leaves much to be desired in regard to identifying the deed notarized by her, for example:

'I show you State's Exhibit 7 (warranty deed) in evidence. Will you please look at that and tell us if that is your signature and if you notarized that?

'Answer: Yes, that is my signature.

'Question: Is that the signature you notarized?

'Answer: I don't recall that as such, but this is my signature so it must be.'

Still the evidence is sufficient from which the jury could find that the defendant, Singh, presented to the notary public a deed upon which the signature of the grantor had been forged, that in response to this request the notary public notarized the signature and returned the deed to Mr. Singh.

Count II of the information charged the defendant with presenting or uttering a forged supplemental escrow instruction to Dwayne Moore, the real estate agent, knowing that the signature of Alfred H. Nichols thereupon was forged. During the trial it developed from the testimony that Moore was out of town during the time this supplemental escrow instruction was delivered to a Mr. Frank Donaldson, an escrow officer for Phoenix Title and Trust Company. Defendant's attorney had, during the trial, objected to the testimony of any transaction between Singh and Donaldson. After the State had rested, the County Attorney moved, pursuant to Rule 145 of the Arizona Rules of Criminal Procedure, 17 A.R.S., to amend the information into the following particulars:

'As to Count II of the information in this trial before the court we would amend it and move the court to amend it, deleting the name of DWAYNE MOORE and inserting the name of FRANK DONALDSON in view of the testimony that has been elicited during the trial. That, in fact, this date, said described instrument was uttered to FRANK DONALDSON rather than to DWAYNE MOORE.' (Page 517, T.R.)

The court granted the County Attorney's motion to amend and the matter was then

submitted to the jury. A guilty verdict was returned both as to Count I and Count II.

COUNT I

We will first concern ourselves with the question raised by the defendant that giving a document to a notary public for the purpose of notarizing a forged signature does not constitute an uttering within the meaning of the statute. For the purpose of this case, the statute may be read as follows:

'A. A person is guilty of forgery who, with intent to defraud:

'1. Signs the name of another person, or of a fictitious person, knowing that he has no authority so to do, or falsely makes, alters, forges or counterfeits any charter, letters patent, deed, lease * * * or utters, publishes, passes, or attempts to pass, as true and genuine any of the false, altered, forged or counterfeited matter described above, knowing it to be false, altered, forged or counterfeited with intent to prejudice, damage or defraud any person * * *.' § 13--421 A.R.S.

It would appear from this statute that we are concerned with two separate and distinct crimes within the one statute. One is the actual forging of the instrument itself with intent to defraud. The other of fense would be the publishing, uttering, passing or attempting to pass the forged instrument knowing it to be so, and with intent to prejudice or defraud any person. State v. Martin, 2 Ariz.App. 510, 410 P.2d 132 (1966). In the case before this Court, the instruments were admittedly forged, and from the fact situation we are not concerned with who did the actual forging or tracing of the names upon the instruments. We are concerned with the question of uttering, publishing, passing or attempting to pass the forged documents. Uttering has been defined as follows:

'To utter and publish a forged instrument is to offer to pass it to another with intent to prejudice, damage, or defraud, declaring or asserting directly or indirectly by words or actions that it is good.' Crawford v. State, 164 Neb. 231, 82 N.W.2d 1 (1957).

'Uttering' is a term of art used to distinguish the actual forgery from the passing or publishing, and as used in the law of forgery is synonymous with publishing:

The words 'utter' or 'publish', as used in the law of forgery, are synonymous, and they mean to make any use, or to attempt any use of an instrument, document or writing, whereby or in connection with which a person asserts or represents to another, directly or indirectly, expressly or impliedly, by words or conduct, that the instrument, document or writing is genuine. People v. Larue, 28 Cal.App.2d 748, 83 P.2d 725, 728.

Both from the statute and from the definitions above, it is apparent that to be convicted of the crime of forgery, the State need not prove that anyone has been injured. The statute is clear that the uttering or passing of an...