Cogsdell v. State

Counsel

Harry K. Murray, of Vicksburg, for appellant. The defendant was indicted under our statutes, Section 949 of the Mississippi Code of 1930. There was no evidence adduced by the State to show that defendant "uttered, published or put off as true" the check in this case. No witness for the State testified that the check was ever presented for payment by Cogsdell; on the contrary, Mr. Ryan, the teller states positively that he never saw the check and it was never presented to him for payment; that Cogsdell came to the window and got three dollars worth of change. 4 Words and Phrases (2nd Series), page 1118. There was no evidence that the defendant forged the signature "H.L. Fischel" to the check; he was not indicted for forgery, yet the court gave the state an instruction that if the jury believed, etc., that the defendant did "make a forge" the check, knowing same to be false and with a felonious, etc., intent to defraud the bank, they would find the defendant guilty. There was no reference to this instruction to the indictment. In fact, it was not and could not have been predicated upon the indictment. It is elemental that "uttering and publishing" paper and "forging" paper are separate and distinct offenses. Burgess v. State, 81 Miss. 482 , 33 So. 499. With all of the evidence in this case before the appellate court, with the charge against the defendant as set out in the indictment, with the submission of the case to the jury upon a different proposition entirely, taking all of the evidence of the State as true, we submit that the defendant has committed no offense. W.D. Conn, Jr., Assistant Attorney-General, for the State. In the judgment of the writer of this brief there was a total failure of proof to sustain the allegation that appellant uttered this forged check. Appellant was not represented by counsel by the trial and there was no motion to exclude, nor was there any requested peremptory instruction nor motion in arrest of judgment. However the defendant stated, "There has no evidence been offered that I forged the check. All of the evidence that has been offered is circumstantial evidence and they are led to believe that I stole the check from the bank. That is not forgery." It will be noted that appellant was not on trial for forgery itself, but an uttering thereof. Whether this statement or appellant was sufficient as a request for a directed verdict as to justify his discharge in this court in the event the court holds there was no evidence to support the indictment, is a matter submitted to the court. Clark v. State, 100 Miss. 751 , 57 So. 209. We submit that there was no evidence in this cause to sustain a charge of uttering a forged instrument and that the judgment of the trial court cannot be sustained on this record.