Willingham v. State, F--75--420

• Decision Date: 03 February 1976
• Docket Number: No. F--75--420,F--75--420
• Citation: 549 P.2d 350
• Parties: Jim WILLINGHAM, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 350

549 P.2d 350

Jim WILLINGHAM, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--75--420.

Court of Criminal Appeals of Oklahoma.

Feb. 3, 1976.

Rehearing Denied May 20, 1976.

Michael W. Mitchel, Annis & Moore, Woodward, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., for appellee.

OPINION

BLISS, Judge:

The appellant, Jim Willingham, hereinafter referred to as defendant, was charged, tried before a jury and convicted in the District Court of Ellis County, Case No. CRF--73--13 of the crime of Forgery in the Second Degree. Punishment was assessed at a term of five (5) years in the custody and control of the Department of Corrections of the State of Oklahoma. From a judgment and sentence in conformance with the verdict the defendant has perfected his timely appeal.

Briefly stated the evidence adduced at trial is as follows: Jerry Edward Barnes testified that on the 13th day of August, 1973, he was working with the defendant when the defendant came out of the home of a Mrs. Rose Baysinger with a check signed by Mrs. Baysinger but not made out as to payee or amount. When the defendant got in the pickup he made the check payable to Jerry Barnes in the amount of $700.00. He then asked the witness to cash same because the defendant did not have an Oklahoma driver's license and Barnes did. Barnes agreed to cash the check, did so and gave the money to the defendant. The witness identified State's Exhibit 1 as the check in question. On cross-examination Barnes admitted that he had initially been charged as a co-defendant and stated that he had made no deal with the prosecution in exchange for his testimony. He further stated that he had never been in the Baysinger home and that he received no part of the proceeds unless they were used to pay his wages at a later date. He admitted that at the time he cashed the check his endorsement reflected his old residence of Woodward, Oklahoma, when in fact he was then living in Texas.

Mrs. Rose Baysinger testified that she lived near Shattuck, Oklahoma, and that she knew the defendant and Jerry Barnes because they had sprayed the outside of her house for termites. She made an in-court identification of the defendant and stated that her signature appeared on State's Exhibit No. 1. She further testified that she did not make the check out for $700.00 nor to Jerry Barnes and that she gave the signed but incomplete check to the defendant. After being reminded by defense counsel of her testimony at the preliminary hearing she then stated that she recalled having signed the check and the phone then ringing. She left the defendant with the signed instrument and answered the phone. When she returned the defendant and the check were gone. The State then rested.

The defendant testified that he did not know Rose Baysinger, had never been in the Baysinger home, had never given a check for $700.00 to Jerry Barnes, and that he had never worked in the Arnett area although he was in the termite business. The defendant's wife then testified that to her knowledge her husband had never worked in the Arnett area.

The defendant's first assignment of error urges that the verdict is in such a form that the trial court must speculate or guess as to the jury's intentions as to length of punishment and that the verdict is thereby too indefinite to sustain the judgment. The verdict referred to is in the following form:

'We, the jury, upon our oath, find the defendant guilty of the crime of Forgery, Second Degree. We assess his punishment at five (5) years.'

We find nothing indefinite about the verdict or the punishment assessed. It is apparent from the face of the verdict that the defendant was found guilty of Forgery in the Second Degree and his punishment was assessed at a term of five years. The defendant's first assignment is without merit.

The defendant next contends that the trial court committed reversible error when he introduced the attorneys and the defendant, by name, to the jury panel and in the presence of Rose Baysinger when it should have been obvious to the trial court that Mrs. Baysinger, an elderly woman, would have difficulty making an in-court identification of the defendant. With this contention we cannot agree.

The introduction of the defendant by name was relevant to the voir dire of the jury. The introduction by name in no way intimated to the jury or to Mrs. Baysinger that the defendant was in fact the man who was allegedly in her home and disappeared with the check. Defense counsel was allowed wide latitude in his cross-examination of Mrs. Baysinger in effort to shake her in-court identification of the defendant. No pre-trial motion or motion in limine was made by the defense. For the reasons set out above we feel that no substantial right of the defendant was prejudiced by the action of the trial court and that the defendant's second assignment is without merit.

The defendant's third assignment of error urges that there is insufficient evidence to support the verdict. Again we do not agree. There are three essential elements of forgery: a false writing or material alteration of an instrument; the instrument as made must be apparently capable of defrauding, and there must be intent to defraud.

Mrs. Baysinger testified that the defendant disappeared with the signed but incomplete instrument. Barnes testified that the defendant filled in the check as to party and amount, asked that he cash same and received the proceeds. This amounts to a false writing and a material alteration of the instrument. The instrument as completed was certainly capable of defrauding since the check was in fact cashed.

In Hurley v. State, 416 P.2d 967, this Court held that the question of guilty knowledge, and whether there was an intent to defraud, are questions of fact for the jury to decide under the circumstances, and may be inferred from what the accused does and says, and from all the facts and circumstances involved in the transaction. In the instant case the testimony of Mrs. Baysinger and Barnes indicates that the defendant disappeared with the incomplete instrument, immediately filled it out, had it cashed by an unwitting associate and received the proceeds. The question of intent to defraud is for the jury to determine.

Defense counsel urges that Barnes was an accomplice and his testimony must be corroborated. Although we do not agree with the defense that Barnes was, as a matter of law, an accomplice, it is our opinion that the testimony of Barnes was sufficiently corroborated by the testimony of Mrs. Baysinger connecting the defendant with the disappearance of the signed instrument.

For all the reasons set out above it is therefore our opinion that there was sufficient evidence presented at trial to support the verdict of the jury. We have repeatedly held that this Court will not reverse a conviction for insufficiency of evidence, if there is substantial evidence, although circumstantial, from which a reasonable and logical inference of guilt arises. See Billey v. State, Okl.Cr., 381 P.2d 160. The defendant's third assignment is without merit.

The defendant's last assignment of error contends that the prosecuting attorney made certain statements during an attempt to introduce evidence, which statements prejudiced a substantial right of the defendant by inferring that the defendant had forged other checks. The incident complained of...