State v. White, 46200

• Decision Date: 16 July 1971
• Docket Number: No. 46200,46200
• Citation: 207 Kan. 800,486 P.2d 1381
• Parties: STATE of Kansas, Appellee, v. Milas WHITE, Appellant.
• Court: Kansas Supreme Court

Page 1381

486 P.2d 1381

207 Kan. 800

STATE of Kansas, Appellee, v. Milas WHITE, Appellant.

No. 46200.

Supreme Court of Kansas.

July 16, 1971.

Syllabus by the Court

1. One of the essential elements of the crime of attempting to pass or utter a forged instrument (K.S.A. 21-621) is that the instrument was in fact a forgery.

2. A forgery is committed when a person affixes a signature to a check with the intention that such signature be regarded as that of another person, while purporting to be such other person, coupled with an intent to defraud.

3. In a forgery prosecution, lack of authority to sign the name of the purported drawer of a check may be proved by circumstantial evidence.

4. The crimes of forgery and attempting to utter a forged instrument are separate and distinct offenses; conviction of one is not dependent upon conviction of the other.

5. The record is examined in a criminal prosecution wherein defendant was convicted of attempting to pass and utter a forged instrument (K.S.A. 21-621) after having been acquitted in his first trial of the charge of forging the same instrument, and it is held: (1) there was sufficient evidence for the jury to infer the check was in fact a forgery; and (2) the trial court did not err (a) in admitting certain evidence, (b) in permitting the state to reopen its case, and (c) in refusing to give a requested instruction.

Richard E. Blackwell, Salina, argued the cause, and was on the brief, for appellant.

Bill Crews, County Atty., and Vern Miller, Atty. Gen., were on the brief, for appellee.

O'CONNOR, Justice:

The defendant, Milas White, was convicted by a jury of attempting to pass and utter a forged instrument (K.S.A. 21-621). Following conviction, denial of a motion for new trial, and imposition of sentence under the habitual criminal act, defendant perfected his appeal.

White was originally charged and tried on two counts: forgery of a check, and attempting to pass and utter the same instrument. On September 25, 1968, a jury returned a verdict of acquittal on the forgery count, but was unable to reach a verdict on the second count. A retrial on October 10, 1968, resulted in White's conviction for the offense involved in this appeal.

The evidence disclosed that on July 3, 1968, defendant entered a Safeway store in Salina and asked Darrell Breault, the assistant manager, to cash a $35 check. The check had already been prepared prior to defendant's entering the store. The name of the purported drawer of the check was Frederick L. Wagoner. Breault requested some identification as well as a checking account number. Defendant produced an identification card with the name of Frederick Wagoner and entered an account number on the face of the check. At this point, Breault made a telephone call and defendant, suspecting that the police were being summoned, departed the store with Breault still in possession of the check. Breault was able to furnish police with the license number and description of defendant's automobile, which led to defendant's apprehension.

After being advised of his constitutional rights by the police, defendant admitted having written the check and attempting to pass it at the Safeway store. Defendant also admitted he did not know anyone by the name of Frederick Wagoner. In a search of defendant's automobile, conducted with his consent, police discovered an Indiana driver's license issued to one Frederick L. Wagoner.

The principal point of error asserted by defendant is that the state failed to prove an essential element of the crime of which he was convicted; namely, that the check he attempted to pass was a forged instrument.

Under the provisions of K.S.A. 21-621, every person who, with intent to defraud, shall attempt to pass or utter any forged instrument, the forging of which is declared to be an offense under the statutes, knowing such instrument to be forged, shall upon conviction be adjudged guilty of forgery. Essential elements of the crime are that the instrument was forged (whether forged by the accused or some other person) and that the accused knew it was a forgery at the time he attempted to utter and pass the instrument. Suck knowledge, we have said, may be proved by circumstantial evidence. (See State v. Young, 203 Kan. 296, 454 P.2d 724; State v. Satterfield, 202 Kan. 395, 449 P.2d 566; State v. Murphy, 145 Kan. 242, 65 P.2d 342.) Forgery has been generally defined as the fraudulent making or altering of a writing to the prejudice of another person's rights. The offense consists of three requisites: (1) a false writing or alteration of an instrument, (2) the instrument as made must be apparently capable of defrauding, and (3) there must be an intent to defraud. (K.S.A. 21-608; State v. Fick, 204 Kan. 422, 464 P.2d 271.) The only element of the offense brought into question here is the sufficiency of the evidence to establish that the check was a false writing purporting to be that of another.

Part of the state's burden in this case was to prove that the signature of the purported drawer, Frederick L. Wagoner, was false or unauthorized. (State v. Swan, 60 Kan. 461, 56 P. 750.) There was no evidence presented by the state with respect to the existence of a Frederick L. Wagoner, or whether a person by that name had an account in the bank on which the check was drawn. The evidence is undisputed, however, that defendant admitted making the check and signing the name of Wagoner. He further acknowledged that he did not know anyone by that name. Whether the name was fictitious or that of an actual person is not important. The circumstances under which defendant presented the check and identification papers to the grocery store manager strongly suggest he pretended to be ...