DECIDED NOVEMBER 2, 1959. REHEARING DENIED NOVEMBER 19, 1959.
Uttering, publishing and passing false checks. Chatham Superior Court. Before Judge Harrison. July 30, 1959.
John J. Sullivan, Frank W. Seiler, for plaintiff in error.
Andrew J. Ryan, Jr., Solicitor-General, contra.
1. As to the general grounds, the evidence is sufficient to sustain the verdict.
2. It is within the discretion of a trial judge as to whether or not secondary evidence is admitted, where there is a sufficient showing that primary evidence is not accessible.
DECIDED NOVEMBER 2, 1959 — REHEARING DENIED NOVEMBER 19, 1959.
The defendant was convicted in the Superior Court of Chatham County on 12 counts. He was indicted on 28 counts along with Charles Lamar, Richard Minich, Walter Brogden and William C. Wiggins. We are not concerned here with any of the other defendants except as they appear as witnesses against the defendant. The court sentenced the defendant to 8 years minimum and 10 years maximum, on each count, to be served concurrently.
The grounds in the indictment are similar in nature and we will quote only one of them. Count 10 reads as follows: "And the grand jurors aforesaid, on their oaths aforesaid, in the name and behalf of the citizens of Georgia, further charge and accuse the said Charles Lamar, Richard Minich, Raymond Bedgood, Walter E. Brogden and William C. Wiggins, of the county and State aforesaid, with the offense of forgery; for that the said defendants in the County of Chatham and State of Georgia aforesaid, on the 21st day of January, in the year of our Lord one thousand nine hundred and fifty-nine, with force and arms, did unlawfully, falsely and fraudulently pass, pay and tender in payment, utter and publish a certain false, forged and counterfeit upon the Liberty National Bank and Trust Company, a bank of the State of Georgia, knowing the said check to have been falsely and fraudulently forged and counterfeited, the said check being as follows, to wit:`American Cyanamid Company, No. 4821. Savannah, Ga. Dec. 26, 1958. Pay to the order of John Patrick $85.35. The Liberty National Bank Trust Company, Payroll Account, Savannah, Ga. J. E. Kenney.' contrary to the laws of the State of Georgia, the good order, peace and dignity thereof."
The defendant assigns as error the overruling of his motion for a new trial on the general grounds and 8 amended grounds, as well as an order overruling a motion in arrest of judgment, and to the denial of a motion for a judgment notwithstanding the verdict.
M. T. Brewster, Sr., a witness for the State, testified in part as follows: "I saw that man in my office in Jacksonville [then] he, Minich, came back several days later; when he came back he had another person with him, but the other person didn't come to the office at that time; he said that he was sick. However, he came in later and we had a few words, — that is the man sitting there [the witness pointed to the defendant]. That man there [pointing to the defendant] paid me for the checks, $11.50 I believe was the actual charge. The other man took the checks, but I believe they were both in the office at that time, but that man [pointing to the defendant] actually paid me for the checks."
Charles Lamar, a co-conspirator, testified in part as follows: "I got those checks from Mr. Minich at Mr. Bedgood's, in Chatham County; when I got there the checks were not written up; they were written up at Bedgood's apartment; I started and I quit; I think Bedgood — he was present the whole time they were written. After cashing these checks the money you might say was split between Mr. Minich, Mr. Bedgood and myself, at Mr. Bedgood's place . . . I testified that these checks were written out up in Bedgood's apartment, where he lived with his wife and family; he was in bed; I didn't see him do any of the writing. The money was divided between us three ways at Mr. Bedgood's apartment."
Richard M. Minich, another co-conspirator, testified in part as follows: "In December last year I made a trip to Jacksonville in Mr. Bedgood's car, with Mr. Bedgood and two ladies, now outside and sworn as witnesses. Mr. Bedgood and I made two trips down there; our purpose was to obtain some American Cyanamid checks from Mr. Brewster's print shop; I don't know what street; I know it's across from Duval Outboard Motors. You show me State's Exhibits 1 to 26; I saw those checks before in Jacksonville, Florida; those are the checks we went to have printed, one hundred of them. Bedgood placed the order and paid for them. I think we got the checks within two or three days; both times the defendant went with me. When we got back to Savannah the checks were in blank; some of the checks were made up at Mr. Bedgood's house and some of them were made up down on the island, the Whitmarsh Island cabin rented by Mr. Bedgood. Defendant's house was in Savannah. I purchased a typewriter and a check protector I think from the Old Reliable Typewriter Company; that is the receipt . . . That is the typewriter we used to make up the American Cyanamid checks; Mr. Lamar did some of the actual typing and Mr. Bedgood did some. I signed the signature `J. E. Kenney' on some of the checks. That is the check protector bought at the same time . . . Mr. Bedgood was with me when I bought the typewriter and the check protector; he gave me $100 and the man gave me the change, and I brought it back to Mr. Bedgood; he was outside in his car waiting for me. We had tried to buy a typewriter at other places; Mr. Bedgood and the two ladies were with me the night before; I went in to buy and they remained in the car. I did not pass any checks for cashing; I took Mr. Lamar around in Mr. George Young's car, and Mr. Lamar cashed checks. The money from the checks Mr. Lamar and I carried back to Mr. Bedgood, and it was split three ways; each one of us got a third. At the time the defendant had a bad hemorrhoid condition and he was in the hospital during the time all this was going on, not during the whole time, a part of the time . . . It was around the 21st or 22nd — Mr. Bedgood came to my house and asked me would I go to Jacksonville, Florida, with him; I told him `Yes'; on the way to Jacksonville he showed me a copy of the American Cyanamid check; we went to Jacksonville, got out of the car, went in to this particular printer there in Jacksonville; Mr. Bedgood gave him a copy of it and said that he wanted an exact duplicate of that check made; that is exactly right. I had never been down there before, and Mr. Brewster had never seen me before. I did not go down there without Bedgood and tell him Mr. Wilson had sent me down. The time I told him Mr. Wilson sent me down was the time Mr. Bedgood was in the car outside, and I went out and got Mr. Bedgood and brought him in."
Martha M. Shropshire testified in part as follows: "It was three or four weeks after I met him in November . . . that he started explaining . . . about the checks; he said that he had some checks made out and that they were real neat and they could be cashed with no trouble at all. The first thing he mentioned to me, he said I wouldn't be involved at all, that all I would have to do would be to stay here in Savannah, and I said I didn't want any part in it, that I was afraid of it; then later on he kept on talking about checks, that it would be so easy, and so then I went along with him. We went to Jacksonville, Florida, to pick up the checks, Rita, Dick, Ray and myself. I saw the checks when we picked them up. You show me Exhibits S-1 to S-26; I have seen some similar to that, but they were checks on a construction company in Tennessee. We came back to Savannah and went to the cabin out on Whitmarsh Island, Dick, Ray, Rita and myself. Before we went to the cabin Dick tried to get a check writer and a typewriter at a pawn shop, but he couldn't get one, so they said they would wait until the next morning. So the four of us went out to the cabin, and the next morning Ray and Dick went to town; they got a typewriter and check writer and brought it back out . . . We proceed then to making out the checks; the check writer wouldn't work; and then Rita tried to type, but she couldn't type, so I typed the checks myself and Ray and Dick stamped them with the check writer themselves, both of them. Those were the checks on the construction company in Tennessee. Ray kept the checks. Then Ray, Rita, Dick and myself went to Knoxville, Tennessee, by Ray's car, Christmas Eve. No, we left the day before Christmas Eve, because we arrived on Christmas Eve early in the morning. The checks were cashed there; I forgot how many were cashed; Dick got them from Ray and cashed them; he gave one at a time, and next to the last one he handed him two at one time. Ray signed those checks. Dick would come back and give the money to Ray each time, and he would get another check. I got $5.00, Rita got $5.00 and Dick got $5.00 when we got back from Knoxville; and Ray got the rest of it; that's the defendant Raymond Bedgood. Shortly after Christmas I went back down to the cabin; down there were Ray, Rita, Dick, and Charlie Lamar. At that time I saw some checks on that type of paper; they were made out, I believe; they were laying on the table when I first saw them; then Ray and Dick and Charlie started talking, so Ray got up and took some of them and he went to the bathroom and started tearing and putting them in the stool, and he dropped a piece on the floor and he picked it up and went outside with them. At that time they were discussing something about the checks, exactly what I don't know. The construction company checks that were not used were torn up by me, on the way back from Knoxville; we had some left over. The defendant sold an automobile and he had a check from the American Cyanamid Company; he showed it to me. . . . It was a check of the American Cyanamid Company; I know that; he told me it looked good and he thought he would have some made like it."
Opal Boyd testified in part as follows: "I only made one trip to Jacksonville [with the defendant]." The witness was shown some checks whereupon she testified, "I saw checks like that when we went to Jacksonville. We picked them up there. I saw them out at the cabin . . . Raymond Bedgood was typing them; I think so. I don't know what typewriter he used."
Mrs. Mary Beacom who qualified as a writing expert testified in part as follows: "The typewritten marks on the checks bore the same characteristics as the typing submitted from this known typewriter; there are distinctive characteristics on both the known and the unknown in regard to the typewriter marks, particularly in the asterisks."
1. The general grounds are not meritorious, inasmuch as there is ample evidence to support the verdict of the jury.
2. Special ground 1 assigns error because it is alleged that the court erred in failing to grant a mistrial on motion of counsel for the defendant after objecting to the following testimony of Richard Minich, a witness for the State: "He [the defendant] introduced you to Lamar?" The witness replied: "That's exactly right. Mr. Bedgood introduced me to Mr. Lamar; he and Mr. Lamar were in the Reidsville Penitentiary together." The testimony to which objection is made in this special ground was elicited on cross-examination by counsel for the defendant. See Freeman v. State, 27 Ga. App. 780 (1) ( 109 S.E. 918) where a somewhat similar situation was held not to be reversible error. See also Christian v. State, 30 Ga. App. 292 (2) ( 118 S.E. 407). The cases cited by counsel for the defendant on this point are not a basis for reversal for this case. Special ground 1 is not meritorious.
3. Special ground 2 assigns error because it is alleged that material evidence was illegally admitted by the court to the jury over objection of counsel for the defendant. The solicitor-general asked the following question: "What type of check were these?" Whereupon the witness at the bar went into the matter of going with the defendant to Tennessee where other bad checks were passed. The witness was asked: "Who wrote those checks?" He replied: "Mr. Bedgood signed them." In support of the contention that this evidence should not be admitted, counsel for the defendant cites Bacon v. State, 209 Ga. 261 ( 71 S.E.2d 615). That case, of course, is good law but there was no logical connection between the two crimes committed by defendant Bacon. In the instant case the evidence shows a continuous series of illegally forged and uttered checks. This makes the evidence in regard to the Tennessee checks a part of the sequence involving forged checks in the case at bar. Code § 38-212 provides that in order to admit secondary evidence it must be shown that primary evidence is not accessible. In the case at bar the record shows that the checks were in the hands of the F. B. I. and were not accessible to or available to the authorities in Georgia. In Wilson-Weesner-Wilkinson Co. v. Collier, 62 Ga. App. 457 (4) ( 8 S.E.2d 171) this court said: "The admission of secondary evidence of the contents of and signature to a document, and the sufficiency of the showing to account for non-production of the original, are within the discretion of the trial court, and cannot constitute error unless the discretion is abused." See also Goettee v. Carlyle, 68 Ga. App. 288 (4) ( 22 S.E.2d 854) and Goldstein v. State, 94 Ga. App. 437 ( 95 S.E.2d 47). Special ground 2 is not meritorious.
4. Special ground 3 assigns error because it is alleged that the court erred in refusing to permit counsel for the defendant to make proper objections to allegedly illegally admitted evidence. The court said: "I am overruling your objections on the ground and don't keep making the same objection on the same point." It is contended that this ruling was prejudicial to the defendant and was an expression of opinion on the part of the court derogatory to the defendant. It is true that a judge, during the trial of a case, must not express or intimate his opinion as to what has been proved. See Code § 81-1104. However, the ruling of which complaint is here made was not harmful and prejudicial to the defendant's cause, under the whole record of this case. This special ground is not meritorious.
5. Special ground 4 assigns error because it is contended that the court erred in allowing certain testimony to be admitted, over objections of counsel for the defendant. The solicitor-general propounded the following question: "What kind of checks were these?" Witness replied: "They were checks on a construction company in Tennessee." As we have stated in the division discussing special ground 2 these checks could not be introduced as evidence. They were checks concerning a transaction in Tennessee and the checks were in the hands of the F. B. I. This special ground is not meritorious.
6. Special grounds 5 and 6 concern evidence which was allegedly illegally admitted. This evidence was substantially the same as that which we have discussed hereinabove in the division covering special ground 2. These special grounds are not meritorious.
7. Special grounds 7 and 8 assign error because it is alleged that the court erred in failing to grant a motion for a directed verdict made by counsel for the defendant on the ground that the indictment was fatally defective in that it failed to set forth that the instruments were passed with the intent to defraud and that they were passed with the intent to injure and, further, failing to allege that anything of value was received.
Special ground 8 contends that the court erred in failing to grant a motion for a directed verdict by counsel for the defendant because the probata failed to sustain the allegata. We know of no law that would require the trial judge to refuse to direct a verdict in a criminal case. These two special grounds are not meritorious.
Counsel for the defendant moved for a judgment notwithstanding the verdict. There was no error in denying the motion for a judgment notwithstanding the verdict.
8. Counsel for the defendant made a motion in arrest of judgment and contends that the court erred in denying this motion. Counsel cites Sims v. State, 37 Ga. App. 819 ( 142 S.E. 464) and Curtis v. State, 80 Ga. App. 244 ( 55 S.E.2d 758) in support of this contention. Those cases are not applicable, because the defendants in those cases were not indicted under Code § 26-3910, the section under which the defendant in the instant case was indicted.
The court did not err in refusing to grant the motion in arrest of judgment.
It does not appear that the court erred in any of the rulings, and the evidence is amply sufficient to sustain the verdict.
Judgment affirmed. Townsend and Carlisle, JJ., concur.