Sutherlin v. State
| Decision Date | 22 September 1939 |
| Docket Number | 30651. |
| Citation | 287 N.W. 614,136 Neb. 809 |
| Parties | SUTHERLIN v. STATE. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. In a prosecution for forging the name of another as the maker of a check, the state has the burden of proving that such name was signed without authority.
2. Where the state attempts to prove a forgery by circumstantial evidence, it is the duty of the trial court carefully to weigh the evidence, to see that the circumstances proved do not merely arouse a suspicion of guilt, but that they are of such a nature and relationship as to entitle a jury fairly to hold them inconsistent with any reasonable hypothesis of innocence.
3. The evidence of the state held insufficient to entitle a jury to convict defendant of forgery.
Error to District Court, Dodge County; Spear, Judge.
Ovid Sutherlin was convicted of forgery, and he brings error.
Reversed and dismissed.
Evidence was insufficient to support conviction of forgery.
J. E Daly, of Fremont, and Earl T. Knowles, of Lincoln, for plaintiff in error.
Walter R. Johnson, Atty. Gen., and C. S. Beck, Asst. Atty. Gen., for the State.
Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, MESSMORE, and JOHNSEN, JJ., and LANDIS, District Judge.
Ovid Sutherlin, who will be referred to herein as the defendant was convicted of forgery and brings error.
The information charges that he forged the name of B. F Sutherlin, as maker of a $5 check. B. F. Sutherlin was his uncle. The check was drawn on the DeLay National Bank, of Norfolk, Nebraska, in favor of " Coast to Coast Store," of Fremont, Nebraska, which cashed it for defendant. It was returned by the bank, not on the ground of forgery, but with the notation, " Has no account."
Defendant claimed that his uncle had authorized him to draw the check. B. F. Sutherlin admitted the authorization. The state, however, contended that the authority did not exist.
At the close of the state's case, defendant moved for a dismissal, on the ground that the evidence was insufficient to sustain a conviction. The trial court overruled the motion, and this ruling presents the principal question of the appeal.
In order to establish a forgery, the state had the burden of proving that defendant signed B. F. Sutherlin's name without authority. Brown v. State, 115 Neb. 325, 212 N.W. 625; Taylor v. State, 114 Neb. 257, 207 N.W. 207.Since direct testimony to show the lack of such authority could not be produced, the state was obliged to rely on circumstantial evidence. Such evidence then had to be weighed carefully by the trial court, to see that the circumstances proved would not merely arouse a suspicion of guilt, but that they were of such a nature and relationship as to entitle a jury fairly to hold them inconsistent with any reasonable hypothesis of innocence. Robino v. State, 133 Neb. 391, 275 N.W. 463; Vinciquerra v. State, 127 Neb. 541, 256 N.W. 78.
The evidence relied upon by the state shows that defendant came to the " Coast to Coast Store," in Fremont, on Saturday afternoon, October 29, 1938, and asked for price quotations on some paint. After comparing these with a pocket memorandum, he told George D. Foote, one of the proprietors, that the prices were favorable and that he would call for fifteen gallons the following Monday morning.
He then asked Foote if he could get a check cashed. He produced an instrument, which Foote thought was a check for $750, and which Foote promptly declared he would be unable to cash. Defendant then inquired if Foote would cash one for $7.50 to $15 in amount. Foote replied that he might consider cashing one for $5 or $6 and filled out a counter check for $5 after defendant gave him the name of the bank on which it was to be drawn. Defendant then signed the name of B. F. Sutherlin as maker. He did not state that he was B. F. Sutherlin, nor did Foote make any inquiry as to his name.
Foote did, however, ask defendant where he lived and was told Pierce, Nebraska. He inquired also whether defendant had ever lived in Fremont, but defendant was somewhat evasive and merely stated that he had been through Fremont many times on a truck. Defendant, as a matter of fact was living in Fremont and had been employed a short time previously at the Montgomery Ward & Company store there. Foote admitted on the witness-stand that he had seen defendant working at this store, but stated that he did not remember such fact at the time.
When the check was returned to the Coast to Coast Store by the bank, marked " Has no account," Foote placed it in the hands of the county attorney, who signed and issued a complaint for forgery and had defendant arrested at his home in Fremont. The deputy sheriff who made the arrest testified that, when he asked defendant whether he wrote the check, defendant replied that his uncle had given it to him.
The state proved further that, at the time the check was drawn B. F. Sutherlin had no active account at the DeLay National Bank. He had carried a small checking account...
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