Opinion
No. F-79-566.
May 19, 1980. Rehearing Denied June 13, 1980.
An appeal from the District Court, Lincoln County; Lloyd H. Henry, Judge.
HOBART REED, appellant, was charged and convicted for the offense of Forgery in the Second Degree, After Former Conviction of a Felony; was sentenced to ten(10) years' imprisonment, and appeals. Judgment and sentence AFFIRMED.
Rodney K. Freed, Prague, for appellant.
Jan Eric Cartwright, Atty. Gen., Duane N. Rasmussen, Asst. Atty. Gen., for appellee.
OPINION
On appeal from a judgment of guilty and sentence of ten (10) years' imprisonment in Lincoln County District Court Case No. CRF-78-118, for the offense of Forgery in the Second Degree, After Former Conviction of a Felony, Appellant Hobart Reed urges two related assignments of error: that the State failed to allege in the Information, and failed to prove in its case-in-chief at trial, that injury was caused by the forgery to the victim as required by 21 O.S. 1971 § 1585[ 21-1585](2) and demurrers to the informant evidence should have been sustained. These assignments of error are without merit.
The evidence of the State at trial tended to establish that on September 7, 1978, a payroll check was stolen from a purse in a pickup parked outside a store in Stroud, Oklahoma. Eight days later, appellant presented the check for payment to a drivein teller at the Stroud National Bank, representing that he was the payee. The teller took the check to her supervisor for approval, whereupon defendant drove away from the bank. A handwriting expert testified that, in his opinion, appellant endorsed the check.
The information adequately alleged the three essential elements of second degree forgery, to-wit: a false writing or material alteration of an instrument, which instrument as made is completely capable of defrauding, and is accompanied by an intent to defraud. See Sweat v. State, 69 Okla. Cr. 229, 101 P.2d 648 (1940) and Willingham v. State, Okla. Cr. 549 P.2d 350 (1976). Under the provisions of 21 O.S. 1971 § 1585[ 21-1585](2), it is unnecessary to allege that the victim was injured. It being unnecessary to allege that injury resulted from the forgery, it follows that proof of injury at trial is unnecessary. The evidence that appellant forged payee's endorsement and presented the check for payment, being otherwise sufficient, amply supports the verdict of the jury. Therefore, the trial court was not in error in denying Appellant's demurrers and, since the evidence of guilt is overwhelming and the punishment imposed is the minimum provided by law, the judgment and sentence should be, and is hereby, AFFIRMED.
". . . be informed that on or about the 18th day of September, 1978, and anterior to the filing thereof, in said County and State and within the jurisdiction of this Court, the above named Hobart Reed then and there being, did then and there unlawfully, knowingly, wilfully, intentionally, wrongfully and feloniously commit the crime of SECOND DEGREE FORGERY 21-1585(2) in the following manner, to wit:
"That he did then and there unlawfully, wilfully, fraudulently and feloniously with intent to defraud, falsely mark, alter, forge and counterfeit a certain instrument in writing by then and there forging and counterfeiting the endorsement of the payee thereof, which instrument is in the words and figures as follows, to-wit: (see copy of check attached)
"and purporting to be the act of Danny McGhee and by which a pecuniary demand and obligation purports to be created and certain rights or property purport to be transferred, conveyed and affected, contrary to the Statute in such cases made and provided, and against the peace and dignity of the State."
Title 21 O.S. 1971 § 1585[ 21-1585](2) requires:
". . . by which false marking, altering, forging or counterfeiting, any person may be affected, bound or in any way injured in his person or property, is guilty of a forgery in the second degree." [Emphasis added]. The word "may" does not mandate allegation and proof.
CORNISH, P.J., and BRETT, J., concur.