Opinion
No. 29,474.
Filed September 26, 1957. Rehearing denied November 25, 1957. Praecipe for Certiorari to United States Supreme Court February 19, 1958.
FORGERY — Criminal Law — Statutes — Maker — Insufficient Funds — Forged Name. — Section 10-2105, Burns' 1956 Replacement, is limited to cases where the maker or drawer knows at the time of making, drawing, uttering or delivering a check, draft or order that he does not have sufficient funds in or credit with such bank, depository, person, firm or corporation for the payment thereof in full upon its presentation. But if the signature of the maker or drawer is forged then Section 10-2102, Burns' 1956 Replacement, with a more severe penalty applies.
From the Jasper Circuit Court, Moses Leopold, Judge.
George Hazelgrove pleaded guilty to forging and uttering a forged check. He appeals.
Affirmed.
Eugene D. Tyler and Henry S. Kowalczyk, both of Hammond, for appellant.
Edwin K. Steers, Attorney General, Owen S. Boling and Merl M. Wall, Deputy Attorneys General, for appellee.
This is an appeal from a judgment on a plea of guilty to an affidavit that charged the appellant with forging and uttering a forged check in the sum of $24.60, for which he was fined $100 and sentenced to the Indiana State Prison for a term of not less than two nor more than 14 years.
The State contends the appeal should be dismissed for appellant's failure to comply with Rules 2-17 and 2-18. However, since appellant's sole contention here is the Fraudulent Check Act of 1927, § 10-2105, Burns' 1956 Repl. [Acts 1927, ch. 201, § 6, p. 576], repealed by implication § 676 of the 1905 Act Concerning Public Offenses, § 10-2102, Burns' 1956 Repl. [Acts 1905, ch. 169, § 676, p. 584], as to uttering a forged check, we prefer to decide that issue and affirm the judgment.
Section 10-2105, Burns' 1956 Repl., is limited to cases where the defendant knew at the time of making, drawing, uttering or delivering, that the maker or drawer of the check, draft or order did not have sufficient funds in or credit with such bank, depository, person, firm or corporation for the payment thereof in full upon its presentation. This section concerns cases when there is in fact a maker or drawer of the instrument.
Section 10-2105 [2949]. Fraudulent checks — Act of 1927. "Whoever with intent to defraud by obtaining money, merchandise, property, credit, or thing of value, although no express representation is made in reference thereto, or who, in the payment of any obligation, shall make, draw, utter or deliver any check, draft or order for the payment of money upon any bank, depository, person, firm or corporation, knowing at the time of such making, drawing, uttering or delivering that the maker or drawer has not sufficient funds in or credit with such bank, depository, person, firm or corporation, for the payment of such check, draft or order in full upon its presentation, shall, on conviction, . . ."
But when a forged name is written as the maker or drawer of a check, draft or order for the payment of money, there is in fact and law no maker or drawer of the instrument, and its making or uttering is a different felony under § 10-2102, Burns' 1956 Repl., for which a more severe penalty is provided.
Appellant's contention is without merit, and the trial court entered a proper judgment.
Judgment affirmed.
Arterburn, C.J., Achor, Bobbitt and Landis, JJ., concur.
NOTE. — Reported in 145 N.E.2d 13.