Fox v. Commonwealth

Full title: HARRY S. FOX, s/k/a HARRY SCOTT FOX v. COMMONWEALTH OF VIRGINIA

Court: Court of Appeals of Virginia. Richmond

Date published: May 25, 1993

Record No. 0717-92-2 (Va. Ct. App. May. 25, 1993)

Opinion

Record No. 0717-92-2

May 25, 1993

FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY PAUL M. PEATROSS, JR., JUDGE.

Scott Goodman, for appellant.

Thomas C. Daniel, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.

Present: Judges Koontz,^_ Elder and Fitzpatrick.

_ When the case was argued, Judge Koontz presided. Judge Moon was elected Chief Judge effective May 1, 1993.

Argued at Richmond, Virginia.

MEMORANDUM OPINION^__

__ Pursuant to Code § 17-116.010 this opinion is not designated for publication.

JUDGE JOHANNA L. FITZPATRICK.

Harry S. Fox (appellant) was convicted in a bench trial of two counts of forgery in violation of Code § 18.2-172 and sentenced to ten years in the penitentiary with eight years suspended on each count. On appeal, he argues that the Commonwealth's evidence was insufficient to establish that he lacked authority to make the checks. We agree and reverse the conviction.

Because the parties are familiar with the facts of this case, we restate only those facts necessary to explain our holding. Appellant cashed two checks drawn on the account of his father, Harry M. Fox (hereinafter father). The checks were made payable to appellant and were noted as payment for "yardwork" and "landscaping" services. At trial, father testified that he "knew about the checks and . . . took no exception to them." He said that while the checks were written without his prior approval, he authorized his son's use of the checks after they were written as he had done in the past. Father admitted that he did not know whether he had "okayed" the two checks for payment by the bank.

This evidence is insufficient to sustain the Commonwealth's burden to prove that the appellant was not authorized to sign his father's name. "Where one signs the name of another to a check it is presumed, in the absence of other evidence, that he has authority to do so. The burden was upon the Commonwealth not only to prove that [appellant] signed [father's] name as maker of the check but the evidence must establish that this was done without authority." Lewis v. Commonwealth, 213 Va. 156, 157, 191 S.E.2d 232, 233 (1972). Father's testimony is at best equivocal in nature and does not establish lack of authority. Accordingly, appellant's conviction is reversed.

Reversed and dismissed.