Summary
In Cohran v. State, 219 Miss. 767, 70 So.2d 46, this same appellee was indicted under Section 2172, Code of 1942, for the forgery of similar cotton tickets.
Summary of this case from State v. CohranOpinion
No. 38975.
February 1, 1954.
1. Forgery — cotton tickets — indictment fatally defective — question raised first time on appeal.
Under statute, prohibiting the sale, exchange, or delivery of any forged or counterfeit note, etc., or other evidence of debt, or engagement for payment of money, indictment which charged sale and delivery of forged and counterfeit cotton tickets was fatally defective in failing to allege extrinsic facts showing how the writings could have been used as evidence of debt or engagement for the payment of money; and although accused failed to demur to indictment, accused could, on appeal, question sufficiency of the indictment to charge an offense. Sec. 2449, Code 1942.
2. Criminal law — instructions — probability of innocence — refusal not prejudicial error.
In prosecution for sale and delivery of alleged forged and counterfeited cotton tickets, refusal of trial court to grant accused an instruction to the effect that if jury believed from the evidence in the case that there was a probability of the innocence of the accused, then there was a reasonable doubt as to her guilt and the jury must return a verdict of not guilty, was error, but not prejudicial in view of other instructions granted accused.
Headnotes as approved by McGehee, C.J.
APPEAL from the circuit court of Lafayette County; TAYLOR H. McELROY, J.
Ethridge Ethridge, Oxford, for appellant.
I. The indictment is void in that the instruments which are alleged to be forgeries are void and without legal efficacy on their faces, and the State failed to show by proper averments of extrinsic facts in the indictment how the rights of another could be affected by said instruments, one or the other being essential in order for the indictment to be valid. Cook v. State, 72 Miss. 517, 17 So. 228; Crosby v. State, 191 Miss. 173, 2 So.2d 812; France v. State, 83 Miss. 281, 35 So. 313; Gooch v. State, 249 Ala. 477, 31 So.2d 776, 174 A.L.R. 1297; Griffin v. State, 96 Miss. 309, 51 So. 466; Herron v. State, 118 Miss. 420, 79 So. 289; Kelly v. State, 204 Miss. 79, 36 So.2d 925; McGuire v. State, 91 Miss. 151, 44 So. 802; May v. State, 115 Miss. 708, 76 So. 636; State v. Chapman, 103 Miss. 658, 60 So. 722; State v. Starling, 90 Miss. 252, 42 So. 203; Taylor v. State, 74 Miss. 544, 21 So. 129; Secs. 1175, 2172, Code 1942; 23 Am. Jur., Forgery, Secs. 28, 29, 33, 46 and p. 29 (1952 Pocket Parts); Annos. 174 A.L.R. 1300; 24 L.R.A. 3.
II. The State failed to prove an essential element of the alleged crime, namely, that appellant sold or delivered to the Browns the particular tickets which she is charged to have so sold or delivered; in fact, the alleged accomplice admitted that he could not identify the particular tickets in issue. Bradley v. State, 128 Miss. 114, 90 So. 627; Eldridge v. State, 76 Miss. 353, 24 So. 313.
III. The State failed to prove an essential element of the alleged crime, namely, either that the persons whose names appear on the tickets in issue were fictitious persons or that the Browns were not indebted to the persons whose names appear on the tickets, one or the other being necessary to establish the alleged crime of selling or delivering forged and counterfeit writings. Kellum v. State, 213 Miss. 579, 57 So.2d 316.
IV. There is a fatal variance between the indictment and the proof in that the indictment charges that the monies obtained by the alleged forgeries were obtained from Ross Brown and Barry Brown when, in fact, as shown by the record, they were obtained from a partnership composed of Ross Brown and Barry Brown. Hays v. State, 207 Miss. 748, 43 So.2d 206; Kellum v. State, supra; Wilson v. State, 204 Miss. 111, 37 So.2d 19.
V. Appellant's conviction is based solely and exclusively upon the uncorroborated testimony of the alleged accomplice, Veotis Smith, and that testimony is wholly insufficient to support the conviction, in that it is improbable, inconsistent, and not worthy of belief when considered as a whole, and it must be weighed with caution and suspicion because: (a) the alleged accomplice could not identify the tickets, and (b) his testimony poses an improbable, if not impossible, situation in that the alleged accomplice testified that he did not know the tickets in question were false, yet he did not receive but fifty cents for cashing them and pleaded guilty to the same offense for which appellant was indicted. Cole v. State (Miss.), 65 So.2d 265.
VI. The Court erred in refusing to grant appellant's request for a directed verdict in that the proof wholly failed to sustain the charges of the indictment even if reasonable and consistent. Cogsdell v. State, 183 Miss. 826, 185 So. 206; McKinney v. State, 143 Miss. 38, 108 So. 282.
VII. The verdict of the jury is against the overwhelming weight of the evidence. Cole v. State, supra; Keyes v. State, 166 Miss. 316, 148 So. 361.
VIII. The Court erred in refusing to grant three requested instructions to appellant: (a) an instruction for a directed verdict, (b) an instruction that if the jury believe that any witness has knowingly, willfully and corruptly testified falsely about any material matter in the case, the jury had a right to disregard the testimony of such witness, and (c) an instruction that if the jury believed from the evidence that there was a probability of the innocence of the defendant, then there was a reasonable doubt as to her guilt, and the jury must then return a verdict of not guilty. Cole v. State, supra; Jones v. State, 141 Miss. 894, 107 So. 8; McKinney v. State, 143 Miss. 38, 108 So. 282; Waldrop v. State, 98 Miss. 567, 54 So. 66; Secs. 2172, 2176, 2179, Code 1942; 23 Am. Jur., Forgery, Sec. 6.
John E. Stone, Asst. Atty. Gen., Jackson, for appellee.
I. Appellant could only attack this indictment by way of demurrer. Cook v. State, 72 Miss. 517, 17 So. 228; Crosby v. State, 191 Miss. 173, 2 So.2d 813; France v. State, 83 Miss. 281, 35 So. 313; Graves v. State, 148 Miss. 62, 114 So. 123; Griffin v. State, 96 Miss. 309, 51 So. 466; Herron v. State, 118 Miss. 420, 79 So. 289; McGuire v. State, 91 Miss. 151, 44 So. 802; May v. State, 115 Miss. 708, 76 So. 636; Moore v. State, 205 Miss. 151, 160, 38 So.2d 693; State v. Barber, 105 Miss. 390, 62 So. 361; State v. Chapman, 103 Miss. 658, 60 So. 722; State v. Starling, 90 Miss. 252, 42 So. 203; Taylor v. State, 74 Miss. 544, 21 So. 129; Secs. 2172, 2449, Code 1942.
II. The State's proof sufficiently identified the tickets. Wright v. State, 212 Miss. 491, 492, 54 So.2d 735.
III. The State proved the tickets to be forgeries. Cole v. State (Miss.), 65 So.2d 265; McKinney v. State, 143 Miss. 38, 108 So. 282; Wright v. State, supra.
IV. There was no variance between the proof and the indictment. Blackwell v. Reid Co., 41 Miss. 102; Fidelity Phoenix Fire Ins. Co. v. Howard, 182 Miss. 546, 181 So. 846; Wilson v. State, 204 Miss. 111, 37 So.2d 19; Wisdom v. Guess Dry Cleaning Co. (Miss.), 54 F. Supp. 762.
V. No error was committed in the refusal of appellant's refused instructions. Dixie Stockyard, Inc. v. Ferguson, 192 Miss. 166, 180, 4 So.2d 724; Dolan v. State, 195 Miss. 154, 157, 13 So.2d 925; Jones v. State, 141 Miss. 894, 107 So. 8; Metropolitan Life Ins. Co. v. Wright, 190 Miss. 52, 62, 199 So. 289; Smith v. State, 128 Miss. 258, 262, 264, 90 So. 883; Waldrop v. State, 98 Miss. 567, 54 So. 66; Woodward v. State, 180 Miss. 571, 582, 178 So. 496.
The grand jury of Lafayette County jointly indicted the appellant Mattie Cohran and Veotis Smith for having sold and delivered unto Ross Brown and Barry Brown, whom the proof showed to constitute a partnership engaged in operating a store, gin and plantation, four alleged "forged and counterfeit writings," and for having obtained thereon from said Ross Brown and Barry Brown the sum of $54.09 of their money. The four alleged, forged and counterfeit writings are set forth in the indictment in the following words and figures:
II.
III.
IV.
"I. Date 10/30 52 M Bernees Jone No. $300 Account Reg. No. ____ Clerk ____ Forwarded 52 196 194 142 ______ PLM 532 3 ______ ok $15.96 Date 10/30 52 M Leeder Jomon No. $300 Account Reg. No. ____ Clerk ____ Forwarded 52 196 184 124 ______ PLM 504 3 ______ ok $15.12 Date 10/30 52 M Edder Lee Mungg No. $300 Account Reg. No. ____ Clerk ____ Forwarded 52 180 196 ______ PLM 376 3 ______ ok $11.28 Date 10/30 52 M Vineger Jones No. $300 Account Reg. No. ____ Clerk ____ Forwarded 52 196 195 ______ PLM 391 3 ______ ok $11.73"The alleged indictment further states that the accused "then and there willfully, unlawfully, falsely, fraudulently and feloniously representing the same to be engagements for the payment of money, unto Ross Brown and Barry Brown, them, the said Mattie Cohran and Veotis Smith, then and there well knowing the same to be forged and counterfeit, and with the willful, unlawful, false, fraudulent and felonious intent of them, the said Mattie Cohran and Veotis Smith, to have the same uttered, passed and delivered." The foregoing writings are said to be, according to the testimony, "cotton tickets," and purporting to have been issued for and on behalf of Ross Brown and Barry Brown for services rendered in picking cotton for them. It was further shown in the testimony that only P.C. Miller and D.C. Houston had authority to issue cotton tickets for and on behalf of the owners of the plantation, and that the practice followed was to give each cotton picker one of these tickets and that when he picked and delivered a sack full of cotton the number of pounds contained therein would be written on the ticket and at the end of the day the number of pounds contained in each sack so delivered would be added up and the amount of money earned would be noted on the ticket and that then the same would be signed by either P.C. Miller or D.C. Houston and that the ticket would then constitute evidence that the owners of the plantation owed the cotton picker the amount of money noted thereon.
However, it will be noted that these so-called cotton tickets as set forth in the face of the indictment do not purport to have been issued for or on behalf of Ross Brown and Barry Brown, nor for or on behalf of any other person, and that the same are not signed by either P.C. Miller or D.C. Houston, or by anyone else. They contain the initials PLM instead of PCM and as heretofore stated are not signed by anyone. In other words, the so-called forged and counterfeit writings do not on their face constitute "engagements for the payment of money to anyone."
The indictment was drawn under Section 2172, Code of 1942, which reads as follows: "Every person who shall be convicted of having sold, exchanged, or delivered, for any consideration, any forged or counterfeited promissory note, check, bill, draft or other evidence of debt, or engagement for the payment of money, absolutely, or upon contingency, knowing the same to be forged or counterfeited, with the intent to have the same uttered or passed; or of having offered any such notes or other instruments for sale, exchange, or delivery, for any consideration, with the like knowledge and with the like intention, shall be guilty of forgery."
It will be noted that these so-called "forged and counterfeit writings" are neither "promissory notes, checks, bills, drafts, or other evidences of debt, or engagements for the payment of money, absolutely, or upon contingency, * * *."
(Hn 1) In this situation it was necessary in order for the indictment to allege any offense whatsoever that the same should have alleged extrinsic facts showing how the writings could have been used as evidences of debt or engagements for the payment of money. The failure to allege such extrinsic facts in connection with the setting forth of the writings which were of no legal efficacy on their face, amounted to more than a formal or other defect that could have been cured by amendment in the event the indictment had been demurred to; the indictment fails to charge any offense whatsoever. Therefore, Section 2449, Code of 1942, does not preclude the appellant from raising the insufficiency of the indictment to charge an offense on this appeal, notwithstanding that the accused failed to demur to the same in the trial court, and the point that the indictment charges no offense for the reasons hereinbefore set forth is well taken.
It was also assigned for error the refusal of the trial court to grant the appellant an instruction to the effect that if the jury believed from the evidence in the case that there is a probability of the innocence of the accused, then there is a reasonable doubt as to her guilt and the jury must return a verdict of not guilty. (Hn 2) This instruction should have been given and it was error to refuse the same, but in view of the other instructions granted unto the accused by which the jury was required to believe to a moral certainty and beyond a reasonable doubt that the accused was guilty before they could convict her, we would not reverse the case for the refusal of this instruction alone.
It is necessary, however, that the cause be reversed and remanded for further proceedings in view of the fact that the so-called forged and counterfeit writings amount to nothing on their face in the absence of the allegations of extrinsic facts showing in what manner the same could have any legal efficacy as constituting engagements for the payment of money.
Reversed and remanded.
All Justices concur except Ethridge and Gillespie, JJ., who took no part.