Summary
In Cogsdell v. State, 183 Miss. 826, 185 So. 206, and again in Nichols v. State, 198 Miss. 821, 24 So.2d 14, this Court held that "neither of these (a request for a peremptory and a motion for a new trial) is necessary when the State, by its own showing, has failed to make out a case of any offense as charged"; and the State, by its own showing, failed to make out a case of any offense here.
Summary of this case from Jordan v. StateOpinion
No. 33414.
December 12, 1938.
1. FORGERY.
The crime of forgery is a separate and distinct offense from that of uttering and publishing as true a forged check knowing the instrument to be forged.
2. FORGERY.
Evidence held insufficient to justify conviction for uttering and publishing as true a forged check, knowing the instrument to be forged.
3. CRIMINAL LAW.
When the evidence wholly fails and there is an entire absence of any evidence to convict accused of crime charged in indictment, the point may be raised for the first time on appeal.
4. CRIMINAL LAW.
In felony cases, taking judgment by default on the merits is fundamentally erroneous regardless of guise in which attempt to do so is made.
5. CRIMINAL LAW.
On appeal from conviction for uttering and publishing as true a forged check knowing the instrument to be false, Supreme Court could review judgment where there was no evidence on which conviction could be sustained, notwithstanding that defendant who conducted his own defense without aid of counsel requested no instructions, and made no motion for directed verdict or for new trial on ground that there was no evidence to support charge in indictment.
APPEAL from the circuit court of Warren county; HON. R.B. ANDERSON, Judge.
Harry K. Murray, of Vicksburg, for appellant.
The defendant was indicted under our statutes, Section 949 of the Mississippi Code of 1930. There was no evidence adduced by the State to show that defendant "uttered, published or put off as true" the check in this case.
No witness for the State testified that the check was ever presented for payment by Cogsdell; on the contrary, Mr. Ryan, the teller states positively that he never saw the check and it was never presented to him for payment; that Cogsdell came to the window and got three dollars worth of change.
4 Words and Phrases (2nd Series), page 1118.
There was no evidence that the defendant forged the signature "H.L. Fischel" to the check; he was not indicted for forgery, yet the court gave the state an instruction that if the jury believed, etc., that the defendant did "make a forge" the check, knowing same to be false and with a felonious, etc., intent to defraud the bank, they would find the defendant guilty. There was no reference to this instruction to the indictment. In fact, it was not and could not have been predicated upon the indictment.
It is elemental that "uttering and publishing" paper and "forging" paper are separate and distinct offenses.
Burgess v. State, 81 Miss. 482, 33 So. 499.
With all of the evidence in this case before the appellate court, with the charge against the defendant as set out in the indictment, with the submission of the case to the jury upon a different proposition entirely, taking all of the evidence of the State as true, we submit that the defendant has committed no offense.
W.D. Conn, Jr., Assistant Attorney-General, for the State.
In the judgment of the writer of this brief there was a total failure of proof to sustain the allegation that appellant uttered this forged check.
Appellant was not represented by counsel by the trial and there was no motion to exclude, nor was there any requested peremptory instruction nor motion in arrest of judgment. However the defendant stated, "There has no evidence been offered that I forged the check. All of the evidence that has been offered is circumstantial evidence and they are led to believe that I stole the check from the bank. That is not forgery." It will be noted that appellant was not on trial for forgery itself, but an uttering thereof. Whether this statement or appellant was sufficient as a request for a directed verdict as to justify his discharge in this court in the event the court holds there was no evidence to support the indictment, is a matter submitted to the court.
Clark v. State, 100 Miss. 751, 57 So. 209.
We submit that there was no evidence in this cause to sustain a charge of uttering a forged instrument and that the judgment of the trial court cannot be sustained on this record.
Appellant was charged in an indictment with the alleged crime of uttering and publishing as true a forged check, knowing the instrument to be forged. There is no proof whatever in the record in support of that charge. The proof, at most, is that he was found in possession of a check upon which an indorsement had been forged. There is no charge of forgery, which, under our statutes, is a separate and distinct offense, even if the proof tended to establish the guilt of the forgery. There is, therefore, nothing before us upon which the conviction can be sustained, under the present record.
Appellant conducted his own defense without the aid of counsel; he requested no instructions, and made no motion for a directed verdict or for a new trial, on the ground that there was no evidence to support the charge, and the only charge, made in the indictment; and the point is now presented whether in the absence of such requests or motions, or any of them, this Court may review the judgment. As foreshadowed in Clark v. State, 100 Miss. 751, 57 So. 209, 38 L.R.A. (N.S.) 187, Ann. Cas. 1914A, 463, we hold that when the evidence wholly fails, when there is an entire absence of any evidence, to convict the accused of the crime charged in the indictment, the point may be raised for the first time on appeal. Such a case is in the same attitude, in practical effect, as had the state simply introduced the indictment and thereupon had rested without the introduction of any evidence whatever. This would be the equivalent of taking a judgment by default on the merits, which in felony cases is fundamentally erroneous, whatever may be the guise of the attempt so to do.
Reversed and remanded.