United States v. Jenkins, 9489.

• Decision Date: 28 June 1965
• Docket Number: No. 9489.,9489.
• Citation: 347 F.2d 345
• Parties: UNITED STATES of America, Appellee, v. Edward Lee JENKINS, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

347 F.2d 345 (1965)

UNITED STATES of America, Appellee, v. Edward Lee JENKINS, Appellant.

No. 9489.

United States Court of Appeals Fourth Circuit.

Argued January 4, 1965.

Decided June 28, 1965.

Harold W. Adams (Court-assigned counsel), Salem, Or., for appellant.

MacDougal Rice, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief), for appellee.

Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges.

SOBELOFF, Circuit Judge.

Appellant was indicted for passing and uttering an altered Treasury check to John Parker with knowledge of the alteration and intent to defraud. 18 U.S.C.A. § 472 (1950). The jury having found him guilty and the court having sentenced him to two years' imprisonment, this appeal was taken.

The defendant was regularly receiving a United States disability pension of $19.00 per month. One of such monthly checks, made out for the usual amount, was altered to show the amount payable as $2,919.00. Jenkins endorsed the check and presented it initially to Mrs. Nellie Dawson, a teller at the Clarendon Trust Company Bank in Arlington, Virginia. As the check appeared to her to have been altered and soiled, Mrs. Dawson returned it to Jenkins, saying that he would have to discuss the matter with Mr. Parker, the Assistant Manager, whom she immediately called. When Parker arrived Jenkins handed him the check, stating again that he wished to cash it. Parker replied that because the check appeared to be altered he could not give Jenkins cash at that time. He informed Jenkins that if he had an account at the bank he could deposit the check and the bank would put a "hold" on it. This meant, according to the testimony, that Jenkins could not make withdrawals against the deposit until the check cleared. Parker told Jenkins that he would be advised when it cleared.

The defendant, who had a checking account at the bank, filled out a deposit slip in the amount of $2,919.00 and left it and the check with the bank, which, despite the suspicions raised by the appearance of the check, sent it to the Clearing House in the usual manner. The Clearing House later notified the bank that it refused payment because of the alteration. No funds were credited to Jenkins on account of this check and he derived no financial benefit from the aborted transaction.

At trial Jenkins testified that he did not open the envelope in which he received the check until he arrived at the bank and that he then endorsed it without looking at its face to see the amount payable. He further stated that when he presented the check to Mrs. Dawson he was unaware that it was in the amount of $2,919.00, but he readily admitted that he became aware of the alteration when Mrs. Dawson refused to cash the check and stated the reason. The check's soiled condition was explained by the defendant as having been caused by the envelope falling out of the mailbox and onto the ground.

Appellant urges several interrelated grounds for reversal. First, he complains of the District Court's failure to grant his motions for judgment of acquittal. There was insufficient proof, he says, both of a specific intent to defraud, and of the uttering charged in the indictment, namely, the uttering to Parker. Jenkins' view of the testimony is that the Government failed to prove an uttering and established only that he showed the check to Parker without attempting to pass it, and that he subsequently left it with the bank merely for safekeeping until it could be determined whether the check would clear. Similarly he argues that there was no evidence that he received or attempted to receive payment for the check, and that therefore the Government has failed to prove the necessary intent to defraud.

Viewing the evidence in the light most favorable to the prosecution, there unquestionably was sufficient evidence warranting submission of these issues to the jury. While there was some conflict, the jury was afforded a substantial basis to conclude that Jenkins knew the check had been altered. Indeed he did not deny learning this from Mrs. Dawson. Furthermore, although Jenkins denied that he knew of the alteration before presenting the check to Mrs. Dawson, the jury...