Summary
In Criddle, supra, the indictment for forgery charged that W. S. Construction Company, a corporation, and First National Bank, a corporation, were the intended victims of the alleged forgery.
Summary of this case from Malley v. StateOpinion
No. 43028.
June 8, 1964.
1. Indictment — forgery and uttering joined in same indictment — when State required to elect.
Forgery and uttering are two separate and distinct crimes; and where joining of two such separate crimes results in prejudice to defendant, it is error not to require State to elect which offense it will pursue. Secs. 2160-2186, Code 1942.
2. Indictment — same — when not demurrable.
When crime of forgery and uttering are joined in one indictment, it is not demurrable if the two charges are based on same transaction or series of connected transactions. Secs. 2160-2186, Code 1942.
3. Criminal law — one charged with forgery and uttering — acquittal — conviction — sentence.
Where one is charged with forgery and uttering, he may be acquitted of forgery and convicted of uttering, but if verdict is a general one, it will be regarded as a conviction of forgery; and in any event, accused may receive only one punishment. Secs. 2160-2187, Code 1942.
4. Indictment — forgery and uttering joined in same indictment — demurrer properly overruled — motion to require State to elect correctly denied.
Where forging of check and uttering were connected transactions and it would be difficult, if not impossible, to prove one without proving the other, trial court correctly overruled demurrer to indictment and correctly denied motion to require State to elect. Secs. 2160-2187, Code 1942.
5. Forgery — fraudulent intent — essence of.
Fraudulent intent is of essence of forgery. Secs. 2160-2186, Code 1942.
6. Forgery — fraudulent intent — proved as laid in the indictment.
To support conviction of forgery, fraudulent intent must be proven as laid in indictment. Secs. 2160-2186, Code 1942.
7. Forgery — indictment — party defrauded — defrauded party's name.
An indictment for forgery must set out defrauded party's name as means of identifying offense charged and as protection against another prosecution for same offense. Secs. 2160-2186, Code 1942.
8. Forgery — same — same — named corporation — proof.
When property is alleged in indictment, as for forgery, to be that of named corporation, there must be proof that company named is in fact a corporation. Secs. 2160-2186, Code 1942.
9. Forgery — same — same — same — proof insufficient.
Where forgery indictment charged that certain company, "a corporation", and a certain bank, "a corporation", were the persons intended to be defrauded, and there was no proof that either of such firms was a corporation, conviction would be reversed since indictment must allege, and proof must show, name of party intended to be defrauded; and if such be a corporation, that fact must be proved. Secs. 2160-2187, Code 1942.
Headnotes as approved by Gillespie, J.
APPEAL from the Circuit Court of Hinds County; LEON F. HENDRICK, J.
Barnett, Montgomery, McClintock Cunningham, Jackson, for appellant.
I. The Court erred in overruling the demurrer of the defendant to the indictment, and thereby committed reversible error. Ainsworth v. State, 206 Miss. 559, 40 So.2d 298; Bryant v. State, 179 Miss. 739, 176 So. 590; Burgess v. State, 81 Miss. 484, 33 So. 499; Cogsdell v. State, 183 Miss. 826, 185 So. 206; Crosby v. State, 191 Miss. 173, 2 So.2d 813; Clue v. State, 78 Miss. 661, 29 So. 516; Hill v. State, 72 Miss. 527, 17 So. 375; Hitt v. State, 217 Miss. 61, 63 So.2d 665; King v. State, 66 Miss. 502, 6 So. 188; Neilson v. State, 149 Miss. 223, 115 So. 429; Osby v. State, 229 Miss. 660, 91 So.2d 748; Overstreet v. United States, 321 F.2d 459; Roberts v. State, 55 Miss. 421; Rowland v. State, 182 Miss. 886, 183 So. 527; Sarah v. State, 28 Miss. 267; Skinner v. State, 198 Miss. 505, 23 So.2d 501; State v. Teat, 53 Miss. 439; State v. Walker, 88 Miss. 592, 41 So. 8; Strawhern v. State, 37 Miss. 422; Sullivan v. State, 150 Miss. 542, 117 So. 374; United States v. Goodman, 285 F.2d 380; Wallace v. State, 182 Miss. 441, 181 So. 522; Washington v. State, 22 Miss. 120; Wilkinson v. State, 77 Miss. 705, 27 So. 639; Winston v. State, 127 Miss. 477, 90 So. 177; Sec. 2449, Code 1942; 27 Am. Jur., Indictments and Information, Sec. 124 p. 683.
II. The trial court committed reversible error in overruling motion of defendant to compel the State to elect which offense in the indictment it would pursue. Burgess v. State, 53 Miss. 439, 24 Am. Rep. 708; Cannon v. State, 75 Miss. 364, 22 So. 827; Hemingway v. State, 68 Miss. 371, 8 So. 317; McEwen v. State, 132 Miss. 338, 96 So. 690; Skinner v. State, supra; United States v. Goodman, supra.
III. The Court erred in overruling objections of the defendant to the testimony offered by the State. Gunter v. State, 180 Miss. 769, 178 So. 472.
IV. The trial court erred in refusing to sustain motion of defendant for a directed verdict. Cunningham v. State, 49 Miss. 685; Hays v. State, 207 Miss. 748, 43 So.2d 206. G. Garland Lyell, Jr., Asst. Atty. Gen., Jackson, for appellee.
I. The trial court did not err in overruling the demurrer to the indictment. Clanton v. State, 211 Miss. 568, 52 So.2d 349; Jimerson v. State, 93 Miss. 685, 46 So. 948; Randle v. State, 105 Miss. 561, 62 So. 428; Roberts v. State, 55 Miss. 421; Secs. 2173, 2179, Code 1942; Joyce, Indictments (2d ed.), Sec. 125; Wharton, Criminal Law and Procedure, Anderson, Sec. 1935.
II. The trial court did not commit reversible error in overruling the motion of appellant to compel the State to elect the offense in the indictment it would pursue. Wharton, Criminal Law and Procedure, Anderson, Sec. 1941.
III. The trial court did not err in overruling objections of the defendant to the testimony offered by the State. Allen v. State, 230 Miss. 740, 93 So.2d 844; Anderson v. State, 171 Miss. 41, 156 So. 645; McGarrh v. State (Miss.), 148 So.2d 494; State v. Goering, 200 Miss. 585, 28 So.2d 248.
IV. The trial court did not err in refusing to sustain the motion of appellant for a directed verdict. Barcus v. State, 49 Miss. 17, 19 Am. Rep. 1; Heard v. State, 177 Miss. 661, 171 So. 775; Lee v. State, 244 Miss. 813, 146 So.2d 736; May v. State, 240 Miss. 361, 127 So.2d 423, 84 A.L.R. 2d 1095; Smith v. State, 112 Miss. 248, 72 So. 929; Sec. 2532, Code 1942.
Appellant was convicted of forgery and sentenced to serve a term in the penitentiary. The indictment charged forgery of a $30 check payable to appellant and purported to be signed by "W. S. Const. Co., Baxter Wade." It also charged he feloniously uttered the forged check, knowing it to be forged.
Appellant demurred to the indictment on the ground that forgery and uttering are two distinct and separate crimes and may not be charged in the same indictment. After the demurrer was overruled he moved to require the State to elect which offense it would pursue and this motion was overruled. Appellant's first two assignments of error are based on the actions of the trial court on the demurrer and motion, and raise the question whether forgery and uttering may be charged in one indictment under the circumstances.
(Hn 1) Forgery and uttering are two separate and distinct crimes. Cogsdell v. State, 183 Miss. 826, 185 So. 206. Where the joining of two such separate and distinct crimes results in prejudice to the defendant it is error not to require the State to elect which offense it will pursue. Burges v. State, 81 Miss. 482, 33 So. 499. Sections 2160 through 2186, Miss. Code 1942, denounce various acts punished as for forgery, including counterfeiting coins and uttering forged instruments. None of these sections provide for a penalty, but each section either provides that the person shall be guilty of forgery or shall be punishable as for forgery. Section 2187 provides that "persons convicted of forgery shall be punished by imprisonment. . . ." If an indictment charged the forging of one instrument and the uttering of another, it would doubtless be bad as this would constitute two different transactions, and the accused would be prejudiced. (Hn 2) We hold that when the crime of forgery and uttering are joined in one indictment, it is not demurrable if the two charges are based on the same transaction or series of connected transactions. Wharton's Criminal Law and Procedure, Anderson, Sec. 1935; Cannon v. State, 75 Miss. 364, 22 So. 827; Brady v. State, 128 Miss. 575, 91 So. 277; Jimerson v. State, 93 Miss. 685, 46 So. 948; cf. Osby v. State, 229 Miss. 660, 91 So.2d 748.
(Hn 3) An indictment charging burglary and larceny, two separate and distinct crimes, is good and the jury may acquit of burglary and convict of larceny; but if the verdict is a general one it will be regarded as a conviction of burglary alone. Clanton v. State, 211 Miss. 568, 52 So.2d 349. By the same reasoning we hold that where one is charged with forgery and uttering, he may be acquitted of forgery and convicted of uttering, but if the verdict is a general one, it will be regarded as a conviction of forgery. In any event, the accused may not receive but one punishment. (Hn 4) Looking back over this record, we are satisfied that appellant was not prejudiced because of the joining of the two charges in one indictment. The trial court correctly overruled the demurrer to the indictment and correctly denied the motion to require the State to elect. The testimony in this case showed that the forging of the check and the uttering were connected transactions and it would be difficult, if not impossible, to prove one without proving the other.
The indictment charged that W. S. Construction Company, a corporation, and First National Bank, a corporation, were the persons intended to be defrauded and there was no proof that either of said firms was a corporation. Appellant contends that the indictment must allege and the proof must show the name of the party intended to be defrauded, and if such be a corporation, that fact must be proved. In Hays v. State, 207 Miss. 748, 43 So.2d 206, this Court said:
(Hn 5) "Fraudulent intent is of the essence of forgery and is expressed in our forgery statutes. 23 Am. Jur. p. 688, Sec. 30. Harrington v. State, 54 Miss. 490; Gates v. State, 71 Miss. 874, 16 So. 342. (Hn 6) To support a conviction it is necessary that the fraudulent intent be proven as laid in the indictment. Eldridge v. State, 76 Miss. 353, 24 So. 313. (Hn 7) The name of the party defrauded must be set out in the indictment as a means of identifying the offense charged and as a protection against another prosecution for the same offense. (Hn 8) When the property is alleged to be that of a named corporation there must be proof that such company is in fact a corporation. 27 Am. Jur., p. 729, Sec. 184; State v. Tatum, 96 Miss. 430, 50 So. 490. The most recent pronouncement upon this question is Wilson v. State, 204 Miss. 111, 37 So. (2) 19, which, in our judgment, is decisive of the question here." (Hn 9) The Hays case is directly in point and requires reversal of this case.
In many jurisdictions the legislature has provided that in forgery cases it is not necessary to charge intent to defraud a specific person or firm and the indictment is sufficient if a general intent to defraud is charged. Where a copy of the instrument alleged to be forged is set out in the indictment, it seems to the writer of this opinion and at least one of the other judges that there could be no possible danger of another prosecution for the same offense, and, therefore, the reason for the rule announced in Hays v. State is of doubtful validity.
The State concedes that it was error to include in the instructions the name of the King Edward Hotel as one of the persons intended to be defrauded, but says that it was harmless. We find no necessity for discussing this question since it should not recur on another trial.
Reversed and remanded.
Lee, C.J., and Ethridge, McElroy and Rodgers, JJ., concur.