Summary
finding evidence of a defendant's participation in the uttering of a false check sufficient to support his conspiracy conviction
Summary of this case from Hoffman v. StamperOpinion
[No. 263, September Term, 1960.]
Decided May 2, 1961. Motion for rehearing as to conspiracy count and to delay issuance of mandate filed May 5, 1961, denied May 8, 1961. Certiorari denied, 368 U.S. 865.
CRIMINAL LAW — Conspiracy To Defraud By Passing Bogus Check — Non-Jury Case — Evidence Held Sufficient To Convict. The Court held in this non-jury case that the evidence was legally sufficient to support the appellant's conviction of conspiracy with another to defraud by passing a bogus check. The trial judge found that the other defendant, granted immunity on this count of the indictment, signed the names of the person purportedly acting with authority for the drawer and of the purported payee to six checks, finding that the signatures were in the same handwriting. The trial court also found as a fact that the appellant turned over a wallet containing cards identifying the purported payee to the other accused, drawing the inference that the person who accompanied the appellant to a drugstore and posed as the purported payee in cashing the check there, was, in fact, not the person designated in the check as the payee. This wallet, containing the identification cards, was in the possession of the other accused when he was arrested. p. 205
CRIMINAL LAW — Uttering False Instrument — Non-Jury Case — Evidence Held Sufficient To Convict — False Representation, Whether Acted Upon Or Not, Is Gist Of Offense. To constitute the offense of uttering under Code (1957), Art. 27, § 44, it is not necessary that the accused be the actual forger of the instrument, and testimony as to the uttering of other checks may be admissible to show a common scheme or intent. Generally, the mere offer of the false instrument with fraudulent intent constitutes an uttering, regardless of its successful consummation. In the instant non-jury conviction of uttering, the Court found that the evidence was sufficient to show that the defendant participated in passing a check and that he knew it to be bogus. He offered to sign the check in order to assure the merchant cashing it that the man who indorsed it was in fact the purported payee designated in the check, when, as the trial court found, he was not, thus falsely representing it to be genuine. Since the evidence supported the inference that the defendant aided, or offered to aid, in uttering a false instrument, it would seem to be immaterial that there was no reliance upon his representation, the gist of the offense being the false representation, whether acted upon or not. p. 206
CRIMINAL LAW — False Pretenses And Obtaining Money By Bad Check — Separate Offenses — Intent To Defraud And Reliance Upon False Representation Necessary Under Both — No Reliance Shown In Instant Case. The crimes of false pretenses under Code (1957), Art. 27, § 140, and obtaining money by bad check under sec. 142 are separate offenses, although an intent to defraud is necessary under both. It is not necessary that the payment be made to the accused in person if made at his request, but it is essential with reference to both offenses that the victim actually rely upon the false representation. In the instant non-jury case, where the testimony of the victim expressly negatived any inference of reliance on his part upon the representation of the defendant, convictions on the third count (passing a bogus check with intent to defraud) and the fourth count (false pretenses) of an indictment were reversed. pp. 206-207
J.E.B.
Decided May 2, 1961.
Motion for rehearing as to conspiracy count and to delay issuance of mandate filed May 5, 1961, denied May 8, 1961.
Appeal from the Criminal Court of Baltimore (PRENDERGAST, J.).
Marcellus Levy was convicted in a non-jury case on four counts of a five-count indictment of uttering (second count), passing a bogus check with intent to defraud (third count), false pretenses (fourth count) and conspiracy (fifth count), and from the judgments entered thereon, he appeals.
Judgments upon the second and fifth counts of the indictment affirmed; judgments upon the third and fourth counts reversed, and case remanded for the entry of an order striking out said judgments and sentences.
The cause was argued before HENDERSON, HAMMOND, PRESCOTT, HORNEY and MARBURY, JJ.
Frank Cannizzaro, Jr., for the appellant.
Joseph S. Kaufman, Deputy Attorney General, with whom were Thomas B. Finan, Attorney General, Saul A. Harris, State's Attorney for Baltimore City, and Dene L. Lusby, Assistant State's Attorney, on the brief, for the appellee.
The appellant was indicted in five counts charging forgery, uttering, passing a bogus check with intent to defraud, false pretenses, and conspiracy. He was acquitted on the first count and convicted on the second, third, fourth and fifth counts and sentenced to two years under each of the second, third and fourth counts, to run concurrently, and three years on the fifth count, to run consecutively. On this appeal he challenges the sufficiency of the evidence to support the convictions on any of the counts.
It was shown that Ray's North Grill was broken into during the night of January 4, 1960, and that among other items missing were twenty checks, serially numbered 1610 through 1629. Six of these checks were recovered by the police, being numbers 1623 through 1628. All contained the printed name of Ray's North Grill and were signed by Raymond Gerber. The restaurant owner, Mrs. Foreman, testified that she knew no one by that name and that she was the only person authorized to sign checks.
William Rotkovitz, a pharmacist, testified that on January 8, 1960, Levy and another man, whom he knew by sight and as a resident of the neighborhood, but not by name, came into his drugstore. He cashed a check for $39.15 for the other man, who indorsed it in the name of Nathan Turner, said he was Nathan Turner, and gave an address on Pratt Street, to which he said he had recently moved. Levy offered to identify Turner and to indorse the check, but the proprietor said: "No, I know this fellow. I am going to cash it." The check was drawn on the Union Trust Company to the order of Nathan Turner, was numbered 1628, and bore the name of Ray's North Grill, signed by Raymond Gerber. The check was returned to Rotkovitz by the bank, marked "no authority to sign."
William Anthony Green testified that he received five checks from Levy numbered 1623 through 1627 and bearing the name of Ray's North Grill. It was agreed that he would cash the checks and split the proceeds with Levy and a third person, whose identity he did not know. Levy supplied him with a wallet containing identification cards in the name of Nathan Turner to be used in the cashing operation. Green signed the name of Raymond Gerber and the name of Nathan Turner as payee to all the checks. He cashed two of the checks indorsing the name of Turner, and turned over part of the proceeds to Levy. He attempted to cash a third, but the storekeeper became suspicious and notified the police. Two checks were found in his possession when he was arrested. When asked about check number 1628, he testified he "didn't remember having it." There was no testimony that he was present when check number 1628 was cashed by Rotkovitz.
The counts under which Levy was convicted involved only the cashing of the check number 1628 by Rotkovitz. The conspiracy count alleged that Levy conspired with Green to obtain money thereon from Rotkovitz. Green was granted immunity on this count. He had previously been convicted of larceny and forgery in connection with the property and checks taken from Ray's North Grill. Levy took the stand and denied that he had ever been in the Rotkovitz drugstore and denied conspiring with Green or turning over any checks to him. It was brought out that Levy had a long criminal record and knew Green when they were in prison together.
We think the evidence is legally sufficient to support the conviction of conspiracy. The trial court stated in its opinion and analysis of the evidence that he believed that Green signed the names of Raymond Gerber and Nathan Turner to all six checks and found that they were in the same handwriting. He also found as a fact that Levy turned over the wallet containing cards identifying Nathan Turner to Green and drew the inference that the person who accompanied Levy to Rotkovitz's drugstore was not Nathan Turner. This wallet was found in the possession of Green when he was arrested. It contained a chauffeur's license, Social Security card, and other cards in the name of Nathan Turner, 1618 Madison Avenue. The evidence supports the trial court's finding of a conspiracy to defraud by passing the check in question. See Hurwitz v. State, 200 Md. 578, Greenwald v. State, 221 Md. 245, and Bichell v. State, 222 Md. 418.
We think there was also sufficient evidence to show the participation of Levy in the passing of check number 1628 and to establish that he knew that it was bogus. Levy offered to sign the check in order to assure Rotkovitz that the man who indorsed it was in fact Nathan Turner when, as the trial court found, he was not. He thus falsely represented it to be genuine. To constitute the offense of uttering (Code (1957), Art. 27, sec. 44) it is not necessary that the accused be the actual forger. 2 Wharton, Criminal Law Procedure (Anderson's ed.), § 648; Underhill, Criminal Evidence (4th ed.), § 685. Cf. Medley v. Warden, 210 Md. 649. Testimony as to the uttering of other checks may be admissible to show a common scheme or intent. Ward v. State, 219 Md. 559. In 23 Am. Jur. Forgery § 5, it is said: "[G]enerally, the mere offer of the false instrument with fraudulent intent constitutes an uttering * * * regardless of its successful consummation * * *." See also Arnold v. Cost, 3 G. J. 219, 231, Reddick v. State, 219 Md. 95, 99 and Clark Marshall, Crimes (5th ed.), § 404. Since the evidence supports the inference that Levy aided, or offered to aid, in the uttering of the false instrument, it would seem to be immaterial that Rotkovitz did not rely upon his representation. Cf. Felkner v. State, 218 Md. 300, 304. The gist of the offense is the false representation, whether acted upon or not.
Violations of Code (1957), Art. 27, § 140 (false pretenses) and 142 (obtaining money by bad check) are separate offenses. See Lyman v. State, 136 Md. 40, and Willis v. State, 205 Md. 118, although an intent to defraud is necessary under both. It is not necessary that the payment be made to the accused in person if made at his request. Simmons v. State, 165 Md. 155. Cf. Felkner v. State, supra. However, it seems to be well established that it is essential both in a charge of obtaining money by false pretenses and under the bad check act that the victim actually rely upon the false representation. See 22 Am. Jur. False Pretenses § 25, and 2 Wharton, Criminal Law Procedure (Anderson's ed.), § 600. The rule that reliance must be shown was stated by this Court in Kaufman v. State, 199 Md. 35, 40, although actual reliance was found to exist in that case. See also Willis v. State, supra, at p. 127. In the instant case we think the testimony of Rotkovitz expressly negatives any inference of reliance on his part upon the representation of Levy. The judgments on these counts must be reversed.
Judgments upon the second and fifth counts of the indictment affirmed; judgments upon the third and fourth counts reversed, and case remanded for entry of an order striking out said judgments and sentences.