United States v. Gilbreath, No. 71-1604. Summary Calendar.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtJOHN R. BROWN, , and INGRAHAM and RONEY, Circuit
Citation452 F.2d 992
Docket NumberNo. 71-1604. Summary Calendar.
Decision Date27 December 1971
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joe Willis GILBREATH, Defendant-Appellant.

452 F.2d 992 (1971)

UNITED STATES of America, Plaintiff-Appellee,
v.
Joe Willis GILBREATH, Defendant-Appellant.

No. 71-1604. Summary Calendar.*

United States Court of Appeals, Fifth Circuit.

December 27, 1971.


Charles W. Richards, Austin, Tex., Court appointed, for defendant-appellant.

Seagal V. Wheatley, U. S. Atty., Jerry Handy, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and INGRAHAM and RONEY, Circuit Judges.

RONEY, Circuit Judge:

The defendant, Joe Willis Gilbreath, appeals a two count conviction for forging and uttering one United States Treasury check in violation of 18 U.S.C. § 495. Because we find that Gilbreath was denied a full and complete instruction

452 F.2d 993
to the jury on his defense that he had the payee's authority to endorse and cash the check, we reverse

Defendant and Joseph B. Cochran, the payee on the United States Treasury check in question, were roommates at the beginning of 1969, in an Austin, Texas, house owned by Gilbreath or his mother. Cochran was to pay rent to Gilbreath for the accommodations. In March, 1969, Cochran, while he was expecting a federal income tax refund check, moved to Houston, Texas. After Cochran had moved, the tax refund check arrived at the Gilbreath house. Gilbreath held the check for a few days and then cashed the check at a local A & P Supermarket. On the back of the check, Gilbreath wrote Cochran's name and then his own name and his own address and telephone number.

Gilbreath took the stand and testified that Cochran had given him permission to cash the check to reimburse himself for money Cochran owed him. Cochran denied that he owed Gilbreath money and categorically stated that he had not given Gilbreath authority to cash the check. Thus, the issue as to authority was drawn.

The defendant specially requested four instructions. The gist of two of the requested instructions was that it is not a forgery if an individual signs the payee's name with authority to do so. The substance of the other two was that when an individual signs the payee's name and then his own as agent, it is not a forgery even if there is no such authority. The district court denied all of the defendant's requested instructions.

The defendant bases his claim for instruction concerning an agency relationship upon Gilbert v. United States, 370 U.S. 650, 82 S.Ct. 1399, 8 L.Ed.2d 750 (1962). In Gilbert the Supreme Court held that an endorsement by an individual in the name of the payee and then his own, as agent, is not a forgery within § 495, even if done without authority, although it may be a misrepresentation of an agency relationship. See also Selvidge v. United States, 290 F.2d 894 (10 Cir. 1961).

The district court properly refused to give an instruction based upon Gilbert because there was no indication of agency on the endorsement, and no testimony of an agency relationship or of oral representations that there was such a relationship. Jolly v. United States, 411 F. 2d 618 (9th Cir. 1969); Ross v. United States, 374 F.2d 97 (8th Cir. 1967), cert. den., 389 U.S. 882, 88 S.Ct. 130, 19 L. Ed.2d 177 (1967); United States v. Wilkins, 328 F.2d 120 (2d Cir. 1964).

However, if the defendant had...

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17 practice notes
  • United States v. Jordan, CRIMINAL ACTION NO. 4:18-CR-87
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • 26 Febrero 2019
    ...involved in the case before them.’ " See United States v. Cronn , 717 F.2d 164, 170 (5th Cir. 1983) (quoting United States v. Gilbreath , 452 F.2d 992, 994 (5th Cir. 1971) ). This means that the jury instructions must at least ensure the Government satisfies "its burden to prove each elemen......
  • U.S. v. Frick, No. 77-5697
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 26 Enero 1979
    ...as precise and specific as required by our case law. U. S. v. Wolfson, 573 F.2d 216, 220-21 (C.A.5, 1978) (quoting U. S. v. Gilbreath, 452 F.2d 992, 994 (C.A.5, 1971)); Perez v. U. S., 297 F.2d 12, 16 (C.A.5, The judgments of conviction of Frick and Harris are AFFIRMED. The judgment of conv......
  • U.S. v. Faust, No. 87-1166
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 28 Junio 1988
    ...of the Secretary of Transportation. See Jolly v. United States, 411 F.2d 618, 619 (9th Cir.1969); see also United States v. Gilbreath, 452 F.2d 992, 993 (5th The trial court's instructions on embezzlement and forgery adequately covered the elements of good faith. The instructions clearly re......
  • U.S. v. Cronn, No. 82-1614
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 28 Septiembre 1983
    ...principles of laws which they are to apply in deciding the factual issues involved in the case before them. United States v. Gilbreath, 452 F.2d 992, 994 (5th Cir.1971). When called upon to review the adequacy of jury instructions, an appellate court must examine the instructions as a whole......
  • Request a trial to view additional results
17 cases
  • United States v. Jordan, CRIMINAL ACTION NO. 4:18-CR-87
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • 26 Febrero 2019
    ...involved in the case before them.’ " See United States v. Cronn , 717 F.2d 164, 170 (5th Cir. 1983) (quoting United States v. Gilbreath , 452 F.2d 992, 994 (5th Cir. 1971) ). This means that the jury instructions must at least ensure the Government satisfies "its burden to prove each elemen......
  • U.S. v. Frick, No. 77-5697
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 26 Enero 1979
    ...as precise and specific as required by our case law. U. S. v. Wolfson, 573 F.2d 216, 220-21 (C.A.5, 1978) (quoting U. S. v. Gilbreath, 452 F.2d 992, 994 (C.A.5, 1971)); Perez v. U. S., 297 F.2d 12, 16 (C.A.5, The judgments of conviction of Frick and Harris are AFFIRMED. The judgment of conv......
  • U.S. v. Faust, No. 87-1166
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 28 Junio 1988
    ...of the Secretary of Transportation. See Jolly v. United States, 411 F.2d 618, 619 (9th Cir.1969); see also United States v. Gilbreath, 452 F.2d 992, 993 (5th The trial court's instructions on embezzlement and forgery adequately covered the elements of good faith. The instructions clearly re......
  • U.S. v. Cronn, No. 82-1614
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 28 Septiembre 1983
    ...principles of laws which they are to apply in deciding the factual issues involved in the case before them. United States v. Gilbreath, 452 F.2d 992, 994 (5th Cir.1971). When called upon to review the adequacy of jury instructions, an appellate court must examine the instructions as a whole......
  • Request a trial to view additional results

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