State v. Welch

• Decision Date: 14 November 1972
• Citation: 95 Adv.Sh. 902,500 P.2d 1071,11 Or.App. 140
• Parties: STATE of Oregon, Respondent, v. Francis Joseph WELCH, Appellant.
• Court: Oregon Court of Appeals

Page 1071

500 P.2d 1071

11 Or.App. 140

STATE of Oregon, Respondent, v. Francis Joseph WELCH, Appellant.

Court of Appeals of Oregon, Department 1.

Argued and Submitted Aug. 21, 1972.

Decided Sept. 8, 1972.

Rehearing Denied Oct. 17, 1972.

Review Granted Nov. 14, 1972.

F. E. Glenn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Walter L. Barrie, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Solicitor Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

LANGTRY, Judge.

Defendant appeals from conviction and sentence on each of two counts of 'uttering and publishing' false checks, one for $3,100 and the other for $3,007. Former ORS 165.115.

The checks, signed 'Gary Price Jr.' were drawn on the account of Ramble In Enterprises in the Security Pacific National Bank, Vista, California, and were payable to Jowelco International, a firm name for which defendant had a business account in the First National Bank of Oregon, La Grande, Oregon. They were deposited in such account by defendant on July 12, 1971. After depositing the checks in such account, defendant immediately drew checks thereon which depleted the account before the First National Bank was notified by the Security Bank in California that the Ramble In account had been closed for about two years, and the checks would not be paid.

Defendant contends that his motion for acquittal should have been allowed because there was insufficient evidence of his knowledge that the checks were false, and for lack of evidence that defendant intended to defraud. He also claims error with reference to two instructions, and that sentences should not have been assessed for two crimes.

(1) The assistant manager of the California bank testified that defendant was the only person ever authorized to draw checks on the Ramble In account; that the account was closed and defendant was notified thereof by letter on April 2, 1969 and that thereafter defendant came to the bank asking that the account be left open and was personally told by the assistant manager that it would not be left open, and that since then it had not been reopened.

This testimony alone is sufficient from which the jury could infer that defendant knew of the falsity of the checks and intended to defraud. Defendant testified that Gary Price Jr. (the maker's name on the checks) was a former partner of his in Ramble In, and had taken it over, and that he had received the checks in question from Price for merchandise. He did not produce Price as a witness and did not testify to any place he could be found. The jury was not bound to believe this testimony, as opposed to that of the assistant bank manager from which opposing inferences could be drawn.

(2), (3) The first of the instructions assigned as erroneous was a part of the instruction defining forgery in which the court said '* * * a bank check with a fictitious name as maker is deemed to be a forgery or a false check.' Defendant claims this was a prohibited comment on the evidence, but cites no authority in support of his contention. It was incumbent upon the court to define forgery for the indictment is based upon former ORS 165.115 which provides:

'Any person who * * * utters, publishes, passes or tenders * * * as true and genuine, any false, altered, forged or counterfeited * * * writing, instrument * * * shall be punished * * *.'

The court's instructions, including the part challenged, correctly defined forgery. The part challenged did not single out the particular testimony of the defendant concerning the Gary Price Jr. signatures on the checks, but was general in nature. In view of all of the evidence, the forgery instruction would have been incomplete without the challenged part. For these reasons, the instruction was not erroneous.

The other instruction assigned as erroneous was not excepted to. We will not consider it. State v. Avent, 209 Or. 181, 302 P.2d 549 (1956).

(4) The other asserted error is that because defendant presented the checks at the same time, he could be sentenced for but one crime.

Each check was a separate entity, each of which violated the forgery statute if the requirements of that statute were proven.

In State v. Woolard, 259 Or. 232, 484 P.2d 314 (1971), the court held that a course of conduct which violates two separate statutes may, in certain circumstances, be the subject of only one...