Bieber v. State

Orth, J., delivered the opinion of the Court. The Grand Jurors of the State of Maryland, for the body of Montgomery County, returned a true bill against Charles G. Bieber (appellant), charging that he did forge (1st count) and utter (2nd count) a certain deed of trust. Appellant was tried by a jury in the Circuit Court for Montgomery County who rendered verdicts, as shown in the docket entries, 1 “Guilty on 1st Count of Indictment and Guilty on 2nd Count of Indictment.” He was sentenced on the day he was convicted to imprisonment for a total of 20 years. The docket entry reads: “SENTENCE — To be committed to the Commissioner of the Department of Correction for confinement for a period of Ten (10) years for the conviction of the 1st Count of Indictment and it is the further sentence that the defendant be committed to the Commissioner of the Department of Correction for confinement for a ⁵²⁶ period of Ten (10) years for the conviction of the 2nd Count of Indictment.

Sentence of the-2nd count to run consecutive with the Sentence, of the 1st Count of Indictment.” 2 The judgment under the first count, charging forgery, is reversed. The judgment under the second count, charging uttering, is affirmed. FORGERY The judgment under the first count is reversed because there was plain error, material to the rights of appellant, in the court’s instructions to the jury with regard to forgery. The judge, explaining that appellant was charged with the crimes of forgery and uttering, read to the jury the provisions of Code, Art. 27, § 44.

Stating that forgery was charged in the first count of the indictment, he said: “To convict the defendant of forgery you must — the State must establish the following .elements beyond a reasonable doubt and to a moral certainty and those elements are that it must be a forged deed. 1. It must have been forged in Montgomery County; 2. It must have been forged with the intent to defraud is three and the deed four, if genuine might apparently be of legal efficacy or the foundation of legal liability or the foundation of legal obligation. Now, in relation to that element of jurisdiction that it must have been forged in Montgomery County, I instruct you that the forgery of any instrument is deemed and concluded to have been committed at the place where the false instrument was uttered.

So if you should believe beyond a reasonable doubt that the instrument was uttered, actually taken by the defendant with the intent to defraud, and recorded in the ⁵²⁷ Circuit Court then you would be justified in convicting the defendant also of the crime of forgery. As to uttering the verb utter is also an adjective and it means to put, to send an instrument such as a check, a promissory note or a deed or deed of trust into circulation to publish or to put forth to offer. Now, the mere offering of a false instrument with fraudulent intent constitutes the crime of uttering under the section of the Code that I read to you under the statute. It is not necessary that the one who utters the false instrument with fraudulent intent is the forger.

In other words, if you believe that the defendant did in fact utter a forged instrument with the fraudulent intent the State need not show that he did in fact himself forge it because proof of uttering would alone support the general verdict of guilty on both counts. That is of the forgery and of the uttering.” At the end of his charge, he said: “If after consideration of all the evidence weighed in accordance with what you deemed to be the law in relation to burden of proof, your verdict may be simply not guilty, or it may be a general verdict of ‘We find the defendant guilty,’ which would comprehend guilt of forgery and uttering. If you find that there was an uttering, again I repeat you may find him guilty of both counts of the indictment. Your verdict must be unanimous.” (Emphasis supplied) After the charge was concluded, the judge, at the suggestion of the State, in which defense counsel concurred, further instructed the jury : “Ladies and Gentlemen of the Jury, at the request of counsel I supplement my instructions ⁵²⁸ for further clarification.

Thank you for your suggestion, counsel, and State. “Your verdict must be unanimous. You may find the defendant not guilty; you may find him not guilty of the first count of the indictment but guilty of the second count of the indictment; or you may find him guilty of the first count and the second count of the indictment.” The jury retired to deliberate its verdict. • Under Code, Art. 27, § 44, “Any person who shall falsely make, forge or counterfeit, or cause or procure to be falsely made, forged or counterfeited, or willingly aid or assist in falsely making, forging, altering or counterfeiting any [instrument designated in § 44], with intention to defraud any person whomsoever” has committed forgery. See Smith v. State, 7 Md. App. 457 . It is a separate and distinct crime to “utter or publish any false, forged, altered or counterfeited” instrument designated in § 44.

We found in Pearson v. State, 8 Md. App. 79 , that the factors required to constitute the crime of uttering a forged instrument as proscribed by § 44 are: (1) the instrument must be uttered or published as true or genuine; (2) it must be known by the party uttering or publishing it that it was false, altered, forged or counterfeited; and (3) it must be uttered or published with intent to defraud another person. So in proving uttering, forgery is not necessarily proved. In forgery the instrument must be falsely made “with intention to defraud;” in uttering, although the instrument must be falsely made, it need not be so made with an intention to defraud — if it was in fact false and published as genuine with knowledge of its falsity, the crime is committed by its publishing with intent to defraud. And it is clear that the criminal agent in the forgery is not necessarily the criminal agent in the uttering; one person "may forge the-instrument and another person may utter it. “To constitute the offense of uttering * * * it is not necessary that the accused be the actual forger.” Levy v. State, 225 Md. ⁵²⁹ 201, 206.

We think it obvious that proof that a person committed uttering is not per se proof that he forged the uttered instrument. However, in Wesbecker v. State, 240 Md. 41 , the Court of Appeals recognized that there is an inference arising from the possession and uttering of a forged instrument which establishes a prima facie case of guilt of forgery by the possessor. It quoted with approval People v. Murrio, 168 C.A.2d 770, 336 P. 2d 559, 561 (1959, Ct. of Ap. of Cal. 2nd Dist.) : “[T]he possession of an instrument recently forged, by one claiming under it, like the possession of goods recently stolen, is evidence against the possessor.” It also quoted Green v. State, 152 Miss. 282 , 119 S. 808 (1929) : “Possession by the appellant of the forged instrument, with claim of title thereto, is prima facie evidence that he either forged it, or procured it to be forged. And since the jury rejected his claim that he did not pass the check to Barnett, and believed that he did so pass it, his possession thereof was left unexplained and was therefore sufficient to warrant his conviction.” It referred to Commonwealth v. Aronson, 312 Mass. 347 , 44 N.E.2d 679 (1942) and 1 Wharton’s Criminal Evidence (12th Ed.), § 137, pp. 259-260.

In Turner v. State, 6 Md. App. 337 this Court said, at 339, citing Wharton and Wesbecker : “In the absence of a satisfactory explanation the forgery could be inferred from the possession and uttering of the forged instrument.” 3 We think ⁵³⁰ it clear that the rule this State has adopted is that, absent a credible non-culpable explanation, 4 the possession and uttering of a forged instrument by one claiming under it raises an inference which provides evidence sufficient to sustain a conviction that the possessor was the forger. In other words the inference makes out a prima facie case which is rebuttable by the showing of circumstances to the contrary. The rule above discussed is to be distinguished from the presumption, in the absence of evidence to the contrary, that a forgery was committed where the forged instrument was first uttered by the defendant or found in his possession. Cole v. State, 232 Md. 111 ; Medley v. Warden, 210 Md. 649 .

Such presumption goes to jurisdiction or venue, not to guilt. 5 We note the questions whether such presumption should be extended to cover a situation where the defendant-forger was not himself the utterer, or even whether a presumption can be based on the fact that the forged checks were found in a forged state in Maryland were said in Cole , at 117, to be open to question and not therein answered. The rule regarding the inference that the possessor and utterer is the forger is also to be distinguished from ⁵³¹ the doctrine that when a person is charged with forgery and uttering and the evidence is sufficient to prove uttering, it would not invalidate a, general verdict of guilty, even if the evidence was insufficient to prove forgery or showed that the uttered instrument was forged by someone else. And if the sentence imposed under the general verdict of guilty under an indictment of several counts does not exceed the permissible maximum under the counts proved, the accused cannot successfully complain. Draper v. State, 231 Md. 423, 426 ; Nelson v. State, 224 Md. 374, 379-380 ; Felkner v. State, 218 Md. 300, 350 ; Medley v. Warden, 210 Md. 649, 652 .

This rule is an application of the rationale of the concurrent sentence doctrine. See Jennings v. State, 8 Md. App. 312 , (1969). 6 It has validity as a matter of judicial convenience; it does not apply to the sufficiency or burden of proof. See Benton v. State of Maryland, 89 S. Ct. 2056, 2061 . To render a verdict of guilty of forgery, the jury must find from the evidence before them that all the essential elements of forgery were established beyond a reasonable doubt.

That the inference properly raised on proof that the de ⁵³² fendant was the possessor and utterer may supply such evidence does not mean that the jury may properly convict him of forgery simply because the evidence was sufficient to convict him of uttering. The instructions of the lower court with respect to forgery were plainly erroneous in two aspects. First, as to jurisdiction it charged that “the forgery of any instrument is deemed and concluded to have been committed at the place where the false instrument was uttered.” This is not the law. There is a rebuttable, not a conclusive, presumption that a forgery was committed where the forged instrument was first uttered by the defendant or found in his possession.

The presumption may be rebutted by evidence to the contrary and the jury should have been so told. Whether there was in fact evidence to the contrary was for the jury, not the court, to decide. Second, we are constrained to conclude that the court in its instructions regarding a conviction of forgery on a finding that appellant uttered the instrument was stating the doctrine as to general verdicts. But even if the judge intended that such instructions be considered only with regard to a general verdict, he did not make such intention sufficiently .clear. 7 He said at one point in the charge, “In other words, if you believe that the defendant did in fact utter a forged instrument with the fraudulent intent the State need not show that he did in fact himself forge it because proof of uttering would alone support the general verdict of guilty on both counts.

That is of forgery and uttering.” And he at another time told the jury that they could render a general verdict of, “We find the defendant guilty.”.. But after he had first concluded his charge and then supplemented the instructions “for further clarification” immediately before the jury ⁵³³ retired to deliver their verdict, he said, pointing out that the verdict must be unanimous: “You may find the defendant guilty; you may find him not guilty of the first count of the indictment but guilty of the second count of the indictment; or you may find him guilty of the first count and the second count of the indictment.” Not only was a general verdict not then mentioned but also the jury were not told that they could find appellant guilty of the first count and not guilty of the second count. And the jury did not render a general verdict; it found appellant guilty of the first count and guilty of the second count. Of course, the proper instruction to have been given was a statement of the inference rule adopted in Wesbecker v. State, supra, above discussed.

This rule is a far cry from an instruction that if the jury found beyond a reasonable doubt “that the instrument was uttered, actually taken by the defendant with intent to defraud, and recorded in the Circuit Court then you would be justified in convicting the defendant also of the crime of forgery.” Or from the further instruction, “If you find that there was an uttering, again I repeat you may find him guilty of both counts of the indictment.” These instructions were not correct and in the light of them the failure to give the jury the proper rule was plain error. It may well have been that the evidence before the jury was sufficient for them to find appellant guilty of each of forgery and uttering, but it could not properly convict him of forgery merely because they were convinced beyond a reasonable doubt that he uttered the forged instrument. We think that the errors in the instructions with respect to forgery, both as to jurisdiction and guilt, were not only plain but material to the rights of appellant. The evidence adduced in the instant case as to each of the ⁵³⁴ offenses of forgery and uttering was, in the main, circumstantial, both as to the corpus delicti and the criminal agency of appellant.

The connection of appellant with the challenged deed was not shown by direct evidence. It was not directly established that he forged it, caused or procured it to be forged, or willingly aided or assisted in its forgery, or that he uttered it. Of course, both the corpus delicti and criminal agency may be shown by circumstantial evidence. Nichols v. State, 5 Md. App. 340, 350-351 .

The judge adequately instructed the jury with regard to the meaning and effect of circumstantial evidence, but the unique factual posture of this case and the unusual circumstances surrounding the alleged forgery and uttering as shown by the evidence bring into sharper focus the errors in the instructions as affecting rights material to appellant. We believe that by the instructions the jury was permitted to reach a verdict of guilty of forgery on a mere finding that appellant was guilty of uttering with no regard to an inference that may have supplied the evidence necessary if the jury determined that there was no satisfactory explanation of his possession and uttering of the forged instrument. Instructions so permitting were plain error material to appellant’s rights and we take cognizance of them on our own motion as permitted by Rule 756 g, even though appellant may not assign the error as of right because he failed to challenge below. The vagaries of jury verdicts are such that we decline to speculate that the verdict of the jury here, as to forgery, was necessarily reached with a full understanding of the proper rule of law.

We therefore reverse the judgment under the first count charging forgery. UTTERING As we have set aside the conviction of forgery we shall consider the questions presented by appellant only as they are apposite to the conviction of uttering. We first note that there was error also in the instructions with respect to uttering. The court did not instruct ⁵³⁵ the jury that it is an essential element of that crime that the person uttering the forged instrument must have knowledge 8 that it was forged 9 or altered.

Pearson v. State, supra. The judge said: “Now the mere offering of a false instrument with fraudulent intent constitutes the crime of uttering * * An instrument may be passed with intent to defraud without knowledge of its falsity but this would not be an unlawful uttering. But there was no request made to the court to supply the omission and no objection below to the instruction given. Md. Rule 756 f.

On appeal appellant does not suggest that we take cognizance of the error. Appellant presented no defense predicated on a claim that he did not know the instrument uttered was false. In view of these circumstances and in light of the entire charge with regard to uttering, and particularly the instruction as to fraudulent intent, we do not feel that the error was material to the rights of appellant and do not take cognizance of it on our own motion. Md. Rule 756 g.

The situation before us it not factually comparable to that in Pearson where in reversing the judgment we were careful to point out that the defense was that the defendant attempted to cash the forged check as a favor for a friend, not knowing that it was forged, that he did not offer to endorse it, that he repeatedly requested the court to instruct the jury specifically and particularly that guilty knowledge was a prerequisite to conviction and that the court refused to do so. 8 Md. App. at 90. The Sufficiency of the Evidence The original deed described in the indictment was admitted in evidence. It consisted of the completion of a printed form of Lerner Law Book Co., Blank No. 1002- ⁵³⁶ A and designated as “Maryland Deed of Trust.” The “Whereas” clauses declared that Sally Peters was justly indebted to appellant, in the full sum of $80,000 with interest at 6 per cent per annum, for which amount Sally Peters had executed and delivered to appellant a promissory note of even date payable to appellant, the principal and interest payable at $565 per month until paid, with “any remaining balance due August 16, 1994.” It stated that the “said note has been identified by the Notary Public taking the acknowledgment to these presents.” By the granting clause certain property described was conveyed to Roy Dodge and Merrill Lynch, Trustees, 10 and there followed the conditions of the trusts as are customary in such deeds. There were covenants by Sally Peters of special warranty and future assurances.

A signature under seal reading “Sally Peters” was written above the typed name “Sally Peters.” A signature reading “William Hancock” appeared in three places on the deed — as being signed, sealed and delivered in his presence ; as certifying that Sally Peters personally appeared before him in his capacity of a Notary Public and acknowledged that she executed the deed for the purposes therein contained; and as certifying that appellant personally appeared before him in his capacity as a Notary Public and made oath in due form of law that appellant was the party secured by the deed (the Beneficiary), that the consideration recited in the deed was true and bona fide as therein set forth, and that appellant affirmed that he was the agent for the party secured and had authority to make the affidavit. The Notary Seal impressed opposite each of the acknowledgment and affidavit read “William Hancock, Notary Public, Montgomery County, Md.,” but whether or not it included a middle initial of William Hancock cannot be ascertained from the impression. There was a statement that William Hancock’s commission expires on the 1st day of July 1969. The deed con ⁵³⁷ tained the following: “This certifies that this instrument was prepared by the party secured thereby, Charles G. Bieber,” followed by a signature apparently reading “Charles G. Bieber” above the typed name “Charles G. Bieber.” The deed was dated 16 April 1968 and the acknowledgment and affidavit bore the same date.

The face of the deed, over the signature of Howard M. Smith, Clerk, showed that it was received for record on the 29th day of April 1968 at 11:52 o’clock A.M. and recorded in Liber No. 3732 at Folio 239, one of the Land Records for Montgomery County. Typed on the face of the deed was “Mail to: Jones and O’Brien, 7720 Wisconsin Avenue, Bethesda, Maryland 20014, Case No. 9918.” A cash register stamp on the deed showed that two sums had been paid to the Clerk of the Court on 29 April 1968, $176 and $9.50. Roy Dodge was Sally W. Peter’s business manager. It was established by the testimony of a psychiatrist that Sally W. Peters was unable to appear as a witness. “ [S]he is disoriented, really doesn’t know what she is doing most of the time or knows very little of what she is doing.

She hallucinates. She hears voices and she is quite depressed. She would not be able to get her own meals if someone doesn’t get them for her.” She had been placed in the Washington Sanitarium 1 February 1968 and was discharged from there to the Colonial Nursing Home on 1 April 1968. “She was very sick, very delusional, received electro shock treatments. She was also quite physically sick. * * * She has been continuously unable to understand accurately any procedure, even the need for herself to have adequate food, since I saw her on 29 May 1967. * * * If she had signed her name [in April 1968] she wouldn’t have known what she was doing.” Pauline Clark, Deputy Clerk of the Circuit Court for Montgomery County, testifying in behalf of the State, explained the procedure followed in the recording of deeds among the Land Records of Montgomery County.

When a deed of trust is brought into the Clerk’s Office ⁵³⁸ and offered for record and the recording fees paid it is indexed, microfilmed or photostated and put in a liber. The original is mailed back to wherever the clerk is told to mail it at the time it is presented for record by the person who presents it for recordation. At the time the deed here was presented for recordation the recordation fee and stamp tax was paid by a check in the amount of $185.50. The check contained the signature “Charles G. Bieber” as the maker, drawn on an account, as indicated by printing on the check, in the names of James Salter, an attorney at law, and Bieber.

The check was returned by the bank “for insufficient funds.” Mrs. Clark telephoned Salter “to get the telephone number of Mr. Bieber.” She then wrote Bieber a letter informing him that his check had been returned marked insufficient funds and requesting that he “send a Money Order immediately to cover same.” The next morning “a young man brought me $185.50 * * * I gave him the check and he gave me $185.50” in cash. She could not identify this man but he told her he was not Mr. Bieber. She did not know who offered the deed for recording. She identified a certified copy of the oath subscribed to by a William M. Hancock when he obtained his commission as a Notary Public of the State of Maryland in and for Montgomery County on 5 July 1967 as contained in the Test Book kept by the Clerk of the Circuit Court for Montgomery County.

It was admitted in evidence. She testified that she had checked the official records pertaining to Notaries Public kept by the Clerk of the Court and that there was only one William M. Hancock commissioned as a Notary Public in and for Montgomery County. William M. Hancock testified that he was a Notary Public for Montgomery County and that he was a real estate broker for County-Wide Realty. He knew appellant who had been employed by County-Wide Realty for a period of time.

He said he had not signed the deed of trust nor had he placed his Notarial Seal thereon, nor had he ever given anyone permission to sign his name or affix his Seal thereon. He had talked to appellant con ⁵³⁹ cerning the signature “William Hancock” on the deed the “last part of May or the first part of June.” He told appellant he had been “queried by a Mr. Canada if I had notarized a document for Mrs. Peters.” Hancock asked appellant “if that was me” and appellant said, “No, that it had nothing to do with me