68 Mich. App. 104 | Mich. Ct. App. | 1976
Lead Opinion
Defendant was convicted by a jury of uttering and publishing a forged instrument. MCLA 750.249; MSA 28.446. He was sentenced to 2-1/2 to 14 years in prison and appeals as of right.
At trial, James Cooper testified that while he was working as a cashier at Don’s Truck Stop on May 2, 1974, defendant entered the truck stop and placed a check before him. Mr. Cooper’s relevant testimony was as follows:
"Q. Did he say anything to you, when he came into the station, sir?
"A. Not anything what he said. He was mumbling, and he just laid the check up there and said he wanted to cash it.
”Q. What did you do when Mr. Mask put the check up on the counter?
’A. I asked for identification.
"Q. Did you look at the check, at all?
’A. Yes, I looked at it.
"Q. Did you see that endorsement at that time?
*107 "A. Yes, I did.
"Q. And what was Mr. Mask’s action, response when you asked for identification?
’A. He told me he didn’t have any.
”Q. What did you do at that point, sir?
’A. I couldn’t take the check.
r,Q. Now after that time, did anyone else enter the station?
’A. After that time, Mr. Lonnie entered.”
Mr. Lonnie, who apparently accompanied defendant to the truck stop, stated to the cashier that he would endorse the check. He endorsed his name and added his driver’s license number and address. The cashier agreed to cash the check, stating that he would have to go and get the money. Leaving defendant and Lonnie standing at the counter, Cooper called the police. After 15 minutes, the police arrived with the defendant and Lonnie still standing at the counter. It was later determined that the check had been stolen and that the payee’s name (Stephen W. Wood) had been forged thereon. Of the issues raised on appeal, one merits discussion and mandates reversal.
Did the trial court commit reversible error by denying defendant’s motion for a directed verdict because the evidence produced at trial was insufficient as a matter of law to convict defendant of the crime charged?
Two of the elements of the crime of uttering and publishing which must be proven beyond a reasonable doubt are knowledge of the falsity of the instrument and intent to defraud. People v Kimble, 60 Mich App 690, 694; 233 NW2d 26 (1975). There was insufficient evidence produced by the prosecutor to prove these elements.
Defendant’s "knowledge” of the falsity of the check was proven by the weakest of circumstantial
The evidence indicated that defendant sought to cash a U.S. Treasury check payable to a Stephen Wood. The check was endorsed in the name of the payee. When asked for identification, defendant responded that he had none. Defendant did not represent himself as Stephen Wood. Mr. Wood testified that he never received the check, that the endorsement was not his signature, and that he had not authorized the endorsement. There was no evidence that the check had been stolen or endorsed by the defendant.
The prosecutor argues that defendant tacitly put himself forward as Stephen Wood by presenting the check and by not stating that he was not the payee. It is also urged that proof of the mental elements of the crime can be based upon the fact that Stephen Wood neither endorsed the check nor authorized another to do so. These facts are equally probative of the argument that someone other than defendant stole the check, forged the endorsement and passed it to the defendant.
Evidence of such elements as knowledge of falsity and intent to defraud is rarely clear and convincing and often can only be proven with circumstantial evidence. In the instant case, however, there is an almost total lack of probative evidence of these elements. We can only conclude that the prosecutor’s burden of proving defendant’s guilt beyond a reasonable doubt was not met. Cf. People v Gadson, 348 Mich 307; 83 NW2d 227 (1957).
Reversed.
Dissenting Opinion
(dissenting). Defendant, Robert Lavern Mask, was convicted by a jury of uttering and publishing forged instruments contrary to MCLA 750.249; MSA 28.446. On September 30, 1974, he was sentenced to serve 2-1/2 to 14 years in prison and appeals as of right.
The people’s key witness, one James Cooper, testified that he was working at Don’s Truck Stop on May 2, 1974 as a cashier. He stated that the defendant entered the truck stop at approximately 4:30 to 5 p.m. and placed a check before him. The testimony at trial was as follows:
”Q. Did he say anything to you, when he came into the station, sir?
"A. Not anything what he said. He was mumbling, and he just laid the check up there and said he wanted to cash it.
"Q- What did you do when Mr. Mask put the check up on the counter?
’A. I asked for identification.
"Q. Did you look-at the check, at all?
’A. Yes, I looked at it.
"Q. Did you see that endorsement at that time?
’A. Yes, I did.
"Q. And what was Mr. Mask’s action, response when you asked for identification?
'A. He told me he didn’t have any.
"Q. What did you do at that point, sir?
’A. I couldn’t take the check.
"Q. Now after that time, did anyone else enter the station?
'A. After that time, Mr. Lonnie entered.”
The witness was referring to a Mr. Willie Lonnie, a friend of defendant’s, who stated that he would
The defendant raises four issues on appeal, only one of which deserves discussion. Defendant contends that the trial court committed reversible error by denying his motion for a directed verdict on the grounds that the evidence produced at trial was insufficient as a matter of law to convict defendant of the charge. This question comes down to the issue of whether a jury can be permitted to infer criminal intent from the fact that defendant presented a prior endorsed check to be cashed, did not explain to the cashier that he was not the payee and carried no identification.
Circumstantial evidence and reasonable inferences drawn therefrom can be sufficient to uphold a conviction. People v Brown, 42 Mich App 608; 202 NW2d 493 (1972). Where there is sufficient evidence presented at trial to justify the jury’s verdict, that verdict is final and will not be disturbed on appeal. People v Harper, 43 Mich App 500, 509; 204 NW2d 263, 268-9 (1972), Iv den, 389 Mich 759 (1973). In the case of People v Fields, 30 Mich App 264; 186 NW2d 77 (1971), the defendant
The instant case is somewhat more difficult, however, because there was no express statement by defendant upon which the jury could have concluded that he possessed the requisite criminal intent. The witness, Mr. Cooper, apparently believed that the defendant was tacitly representing himself to be the payee. Further, the jury apparently concluded, based on all the facts , and circumstances, that the defendant intended to mislead Mr. Cooper into thinking that he was the payee and that he had already endorsed the check. I am certain that the strange and unexplained inability of the defendant to produce any identification combined with the other, circumstances in this matter did present a question of fact for the jury as to whether the defendant had the requisite criminal intent to defraud and knowledge that the instrument was forged.
Defendant argues that in order to constitute a
By unanimous decision this Court affirmed the conviction of the defendant in the case of People v Peace, 48 Mich App 79; 210 NW2d 116 (1973), where the prosecution was able to show that a money order was forged, that two parties were at the scene of the crime, one waiting in an automobile while the other cashed the money order; the license plates on the vehicle were found to be issued to the defendant, and a fingerprint expert testified that he found two of defendant’s prints on the money order. The facts of that case are certainly no more compelling than the facts of the instant one.
I believe that the testimony regarding the behavior and actions of the defendant in attempting to cash a forged check were sufficient to present a question of fact for the jury of whether he knew the check was forged, and whether he had an intent to defraud.
I have examined defendant’s other allegations of error and find them to be without merit.
I would affirm this conviction.