Cole v. State

Sybert, J., delivered the opinion of the Court. The Circuit Court for Baltimore County, sitting without a jury, convicted the appellant, Clarence R. Cole, on the first count of each of four indictments charging the forgery of a check, and acquitted him on the other two counts of each indictment, charging uttering and obtaining money by false pretenses, respectively. He was also convicted under a criminal information charging conspiracy to obtain money by false pretenses. On this appeal he seeks reversal of the four forgery convictions on the ground that there was no evidence that the forgeries occurred within this State, or in Baltimore County.

He also maintains that the evidence was insufficient to prove that he actually forged one of the checks, and claims there was insufficient evidence to prove the conspiracy. Cole and two other defendants in various cases — Roland E. Bell and John E. Bell — were tried together. A fourth defendant, Benjamin Hill, was not tried at the same time because he lacked counsel. The trial embraced separate indictments charging some or all of those tried with involvement in the following events (all of which occurred in Baltimore County) : the cashing of two forged checks at the Cristobal Inn; the cashing of two forged checks at the Geresbeck Supermarket; the cashing of four forged checks at the Sherwood Liquor Store; the cashing of one forged check at Goldberg’s Department Store; and the cashing of two forged checks at Baker’s Tavern.

The criminal information charging all four defendants with conspiracy to obtain money by false pretenses was also tried at the same time as to Cole and the two Bells. It arose out of an attempt to cash a check at the Midway Inn. The appellant, Cole, was convicted of forging the four checks cashed by the Cristobal Inn and the Geresbeck Supermarket, and as a participant in the conspiracy case. The State produced the following evidence.

The checks passed in the inn (checks nos. 17041 and 17048) and those passed in the supermarket (checks nos. 17044 and 17050) were all checks of the Daniels ¹¹⁵ Motor Freight Company drawn on an Ohio bank, were all dated May 3, 1962, and, according to the testimony, were all passed on May 14, 1962 by unidentified persons. These four checks, as well as two other checks of the same company involved in one of the other cases (checks nos. 17043 and 17049), all purported to be signed by “Nathaniel J. Lee” as authorized signer for the company. Kenneth J. Lee, the office manager of the company, testified that 250 checks, with serial numbers including those of the six involved, were missing from the company office, although he could not say when they had disappeared, and that the signatures “Nathaniel J. Lee” were unauthorized. A handwriting expert of the Federal Bureau of Investigation testified that he had compared the signatures on the six checks with three pages of handwriting samples obtained from Cole, and that it was his conclusion that Cole had written the signatures.

In the case involving the Sherwood Liquor Store, the proprietor, Horner, identified Cole and two of the other defendants as three of four men for whom he had cashed four forged checks in his store on June 7, 1962. These purported to be checks of B & D Contractors, Inc., of Reisterstown, Maryland, drawn on a bank in Baltimore City. However, the court granted a motion for acquittal in that case of the three defendants on trial because the State offered only one of the checks in evidence and Horner was unable to say which defendant had passed it, and no evidence was presented as to who had forged that or the other three checks. Likewise, in the Goldberg’s Department Store case, a verdict of acquittal was entered when the testimony showed that Cole had passed a forged B & D Contractors check on June 16, 1962 although Roland Bell was charged as the utterer in the indictment, and no proof was offered as to the forger.

In the Baker’s Tavern case, involving the two forged Daniels Motor Freight Company checks — nos. 17043 and 17049 — mentioned above, verdicts of not guilty were entered because the prosecuting witness did not appear in court. Appellant contends that the Circuit Court for Baltimore County was without jurisdiction to try him in the four for ¹¹⁶ gery cases. It is his position that the forgeries were not affirmatively proven to have been committed within the State of Maryland, and that even if such could reasonably be inferred there was insufficient proof that they were committed in Baltimore County. The courts have long recognized the difficulty of proving by direct evidence the location where a forgery actually occurred, due to the very nature of the act itself.

See Anno. 164 A.L.R. 621 , 649-660. Justice Story long ago pointed out this difficulty in the case of United States v. Britton, 24 Fed. Cas. 1239, 1241 , No. 14,650, 2 Mason 464 (1822), wherein he stated “[ajcts of this sort are not usually done in the presence of witnesses; but in places of concealment, with a view to prevent detection; and it is rare that the government can offer any evidence of the place of the forgery, except that which arises from the fact of the utterance of the forged instrument”. Because of this obvious difficulty, courts have relied on various presumptions or inferences to permit a finding of proper jurisdiction and venue, in order to make prosecution possible. Usually these presumptions or inferences result from the defendant’s possession or uttering of the forged instrument.

Thus it has been said that “[wjhen a forged instrument is uttered, or attempted to be uttered, it is presumed prima facie to have been forged in the county where it is so uttered, or the attempt made”, State v. Douglas, 278 S. W. 1016, 1022 (Mo. 1925). See also Commonwealth v. Leib, 76 Pa. Super. Ct. 413 (1921), and cases cited.

In Medley v. Warden, 210 Md. 649 , 123 A.2d 595 (1956), this Court said (at pp. 652-653 of 210 Md.) : “It is stated in 23 Am. Jur. § 37, that as between states forgery is deemed to be committed at the place where the false instrument is uttered. Jurisdiction over the subj ect matter may attach where acts are performed in one state with the intention of producing an illegal effect in another, or where the crime is consummated. State v. Kriss, 191 Md. 568, 575 ; Restatement, Conflict of Laws, § 65 and § 428.

See also Bloomer v. State, 48 Md. 521, 535 , and Stout v. State, 76 Md. 317. It is not a fatal objection that there may be concurrent jurisdiction at the place where the of ¹¹⁷ fense is begun. 1 Wharton, Criminal Law (12th ed.), § 334. In 1 Wharton, Criminal Evidence (12th ed.), § 92, it is also said: ‘In the absence oí evidence to the contrary, it may be presumed that a forgery was committed where the forged instrument was first uttered by the defendant or found in his possession.’ * * * In any event, the jurisdictional requirement was satisfied by the fact that the offense of uttering occurred in the localities where the charges were laid.” Other courts have recognized a similar presumption from the fact of the defendant’s possession of the forged instrument. Thus it was said in Spencer v. Commonwealth, 2 Leigh 751 (Va. 1830), that “ [p] ossession of a forged instrument is prima facie a presumptive proof that the forgery was committed at the place where such possession was first made known.” See also Nix v. State, 20 Okla.

Crim. Rep. 373 , 202 Pac. 1042 , 26 A.L.R. 1053 (1922). Other authorities are not willing to state the proposition as a presumption of law but say that in the absence of other evidence, possession or uttering of a forged instrument by the defendant within the jurisdiction of the court is “strong evidence” that it was forged therein. People v. Winthrop, 264 Pac. 263 (Cal.

App. 1928), and cases cited. Cf. Conley v. United States, 23 F. 2d 226 (1928), and People v. Adams, 132 N.E. 765 (Ill. 1921). Of course, even when the various presumptions are recognized, they can be overcome by evidence or circumstances to the contrary, United States v. Britton, supra.

The present case is unusual in that the defendant was not shown by direct evidence to have either possessed or uttered within the State of Maryland the four Daniels Motor Freight checks which he was convicted of forging. Whether the presumption, discussed above, as to the uttering of a forged instrument 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, is open to question. However, we do not have to answer that problem in the present case, since there was sufficient