State v. Weber

• Decision Date: 22 August 1966
• Docket Number: No. 7983,7983
• Citation: State v. Weber, 76 N.M. 636, 417 P.2d 444, 1966 NMSC 164 (N.M. 1966)
• Parties: , 3 UCC Rep.Serv. 907 STATE of New Mexico, Plaintiff-Appellee, v. Ward WEBER, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 444

417 P.2d 444

76 N.M. 636, 3 UCC Rep.Serv. 907

STATE of New Mexico, Plaintiff-Appellee, v.Ward WEBER, Defendant-Appellant.

No. 7983.

Supreme Court of New Mexico.

Aug. 22, 1966.

Toulouse, Ruud, Gallagher & Walters, J. E. Casados, Albuquerque, for appellant.

Boston E. Witt, Atty. Gen., Paul J. Lacy, Myles E. Flint, Asst. Attys. Gen., Santa Fe, for appellee.

OPINION

OMAN, Judge, Court of Appeals.

On May 26, 1964 an information was filed charging defendant-appellant with the crime of forgery.He was found guilty by the jury, the trial court entered judgment and sentence accordingly, and appellant has taken this appeal from the judgment.He asserts three points relied upon for reversal, and these points will be disposed of in the order of their presentation in the brief in chief.

On April 22, 1964 a 1956 Cadillac automobile, belonging to Mr. E. P. Lynn, was levied upon under a writ of execution issued out of the Justice of the Peace court of J. W. Maxfield.Appellant was employed as a clerk by this Justice of the Peace.The automobile was taken into custody by a deputy sheriff pursuant to the levy.

Shortly thereafter, Mr. Mel Chavez heard that appellant had a car for sale and he talked with appellant about purchasing the Cadillac.Appellant told him that he could not sell the car at that time.

About this same time Mr. Lynn talked to appellant about redeeming the car, and was advised by appellant that he had thirty days from April 22 within which to raise the amount owing under the judgment.Mr. Lynn told appellant that at the time he was unable to raise the full amount, but that he was going to try and raise it.

At the time a security agreement covering the car was held by the Bank of New Mexico, and Mr. Lynn was three months delinquent in his payments to the bank.Appellant learned of this and on April 30, 1964, purchased the note and security agreement from the bank.He took an assignment of all the bank's right, title and interest in and to the security agreement.On this same date Mr. Lynn observed his car in a service station and noted that the tires were being removed and replaced by smooth tires.

On May 1, 1964appellant then sold the car to Mr. Chavez.He admittedly signed the name 'E. P. Lynn' as seller on the assignment form appearing on the reverse side of the original certificate of title, completed the same showing Mel A. Chavez as the purchaser, signed his own name as the notary public before whom the same was subscribed and sworn to by 'E. P. Lynn,' and then affixed his notary seal.He delivered the car and certificate of title to Mr. Chavez, but told Mr. Chavez not to file the certificate of title until he gave Mr. Chavez an ok.

Mr. Lynn knew nothing about this sale of his car, but on May 2he asked appellant about the tires being taken from the car, and appellant admitted he had given permission to the deputy sheriff, who picked up the car under the writ of execution and who worked out of Judge Maxfield's court, to take two of the tires.All four were found on this deputy's car.

Mr. Chavez, after taking possession of the car, noted the tires were not the same as had been on it when he first looked at it.He went back to appellant, called this to his attention, and the new tires belonging to Mr. Lynn were then put back on the car.

On May 9, 1964 Mr. Lynn observed his car parked at Station D of the United States Post Office.He telephoned the Albuquerque City Police and a Sergeant Chappell arrived in response to the call.As Mr. Chavez, who is a mailman, drove away, the Sergeant stopped him, and Mr. Chavez thereupon produced the certificate of title.At that time Mr. Lynn observed that his name had been written in the form of assignment as the seller, and the advised Sergeant Chappell that this was not his signature.

On May 16 Mr. Lynn went to the office of an attorney, at the direction of appellant, paid off the balance owing on the vehicle, and recovered possession thereof.

There are some discrepancies in the evidence as to the price paid by Mr. Chavez for the car.Appellant said it was approximately $585.Mr. Chavez said it was about $525.Mr. Chavez was given a check for $528.95 by appellant after Mr. Chavez returned the car.There was evidence that the amounts owing on the note, the judgment, and costs totaled $497.95.

Appellant's first point is that he'* * * was entitled to a directed verdict upon failure of the state to prove the essential element of intent to defraud or injure as required in the crime of forgery.'

Appellant was charged and convicted of a violation of the provisions of § 40A--16--9,N.M.S.A.1953 which are as follows:

'Forgery--Forgery consists of:

'A.falsely making or altering any signature to, or any part of, any writing purporting to have any legal efficacy with intent to injure or defraud; or

'B.knowingly issuing or transferring a forged writing with intent to injure or defraud.

'Whoever commits forgery is guilty of a third degree felony.'

It is admitted by appellant that he falsely signed the name 'E. P. Lynn' to the assignment of title, and that he falsely showed that the same had been acknowledged before him as a notary public.Thus, as appellant asserts, the only question under this point is whether the evidence was sufficient to support a finding of 'intent to injure or defraud.'We are of the opinion that the evidence amply supports such an intent.

The crime of forgery was completed when the false-making of the signature with intent to injury or defraud had been accomplished, and an injury or loss need with intent to injure or defraud had been 26 N.M. 70, 188 P. 1104;State v. Smith, 32 N.M. 191, 252 P. 1003;Hurst v. State, 1 Ala.App. 235, 56 So. 18;State v. Laborde, 120 La. 136, 45 So. 38;People v. Esrig, 240 App.Dov. 300, 270 N.Y.S. 372, II Wharton, Criminal Law and Procedure, § 6223 at 397 (12th Ed.1957);Clark and Marshall, Crimes, § 12.33 at 844 (6th Ed.1952).

However, there is evidence that Mr. Lynn actually sustained injury or loss in more than one respect.

His automobile and the false assignment were delivered into the possession of Mr. Chavez, who made use of the same for at least nine days.The evidence is that his vehicle was worth from $600 to $700.Appellant undertook to sell the vehicle for something between $525 and $585.The total amount owing by Mr. Lynn on the note and the judgment, including costs, was $497.95.Appellant neither paid nor offered to pay the difference to Mr. Lynn.Under the execution Mr. Lynn was entitled to have the car sold at public sale in the manner and after the notice prescribed by §§ 24--2--1,24--2--4, and36--6--5,N.M.S.A.1953, and it can hardly be contended that appellant's conduct was not designed to deprive Mr. Lynn of these rights.

However, even if it could properly be said that appellant, as the secured party, legally took possession of the car pursuant to the provisions of § 50A--9--503,N.M.S.A.1953, and was thus entitled to dispose of the same by private sale, pursuant to the provisions of § 50A--9--504(3),N.M.S.A.1953, still he failed to give reasonable notification of the time after which the sale would be made.He also failed to account to Mr. Lynn for the surplus money received from the sale to Mr. Chavez, as required by § 50A--9--504(2),N.M.S.A.1953.

The evidence was clearly sufficient to support a finding of intent to wrongfully or fraudulently deprive another of a lawful right, interest or property in accordance with the decisions in the cases of People v. Leach, 168 Cal.App.2d 463, 336 P.2d 573;State v. Clayton, 236 La. 1093, 110 So.2d 111, andState v. Harris, Mo., 313 S.W.2d 664(1958), relied upon by appellant.See alsoPeople v. Esrig, supra, andHurst v. State, supra.

An appellate court will not review the evidence on appeal, except to determine whether the verdict is supported by substantial evidence.State v. Fields, 71 N.M. 559, 395 P.2d 908;Wilcoxson v. United States, 231 F.2d 384(10th Cir.1956), cert. denied, 351 U.S. 943, 76 S.Ct. 834, 100 L.Ed. 1469.When, as in the present case, the verdict is supported by substantial evidence, it will not be disturbed.State v. Mesecher, 74 N.M. 510, 395 P.2d 233;State v. Crouch, 75 N.M. 533, 407 P.2d 671.

The second point relied on for reversal is that the court erred in refusing to give instructions on appellant's theory of the case, in giving abstract statements of the law in instructions which somewhat relate to appellant's theory, and in giving an instruction on a false and prejudicial issue.

He first complains of the court's failure to give his requested InstructionNo. 6, which was as follows:

'6--You are instructed that, if you should find from all of the evidence and the law of the State of New Mexico as I have given it to you, that the defendant Weber had, through the assignment of the bank because of the default under the terms and conditions of the bank's security instrument, and through the execution from the Justice of the the Peace Court, legal possession of the automobile in question, and therefore had both legal and equitable title in the automobile, insofar as the law is concerned, and could therefore do with the automobile as he wished without the necessity of securing any signed instrument or bill of sale from E. P. Lynn, and that defendant Weber, under the law of the State of New Mexico, could have obtained title from the State upon proper application, then you shall find that the State has failed to prove the intent of defendant to injure or defraud E. P. Lynn, and further, that they have failed to prove the legal efficacy of the writing herein charged, and you shall return a verdict of acquittal for defendant.'

Appellant must fail in this contention, because this requested instruction is not a correct statement of the law.He could not possibly have come into legal possession of the automobile 'through the assignment of the bank * * * and through the execution from the Justice...