United States v. Gilbreath, 71-1604. Summary Calendar.

• Decision Date: 27 December 1971
• Docket Number: No. 71-1604. Summary Calendar.,71-1604. Summary Calendar.
• Citation: 452 F.2d 992
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joe Willis GILBREATH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

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 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 authority from the payee to cash the check, he would not be guilty of forgery under 18 U.S.C. § 495. United States v. Sonnenberg, 158 F.2d 911 (3d Cir. 1946). The district court did not make this sufficiently clear in the instructions to the jury. The single reference to the term "authority" in the instructions was as follows:

"He is guilty of forgery who, without lawful authority and with intent to injure and defraud, shall make a false instrument in writing purporting to be the act of another, in such a manner that the false statements so made would, if the same were true, have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred or in any manner have affected any property whatever."¹

Twice, when the court enumerated the elements of forgery, the significance of lack of authority was not mentioned.² Obviously the jury could have believed that Gilbreath was guilty if all the elements of the crime as charged were present, notwithstanding any authority Gilbreath had from Cochran to endorse the check. In addition, we note that the only reference to "authority" was qualified by the word "lawful."³ Since the check involved was a United States Treasury check, the jury may have received the erroneous impression from that qualification that only the United States Government could grant authority to endorse the check.

The primary purpose of jury instructions is to define with substantial particularity the factual issues, and clearly to instruct the jurors as to the principles of law which they are to apply in deciding the factual issues involved in the case before them. United States v. Hill, 417 F.2d 279 (5th Cir. 1969). Accordingly...