People v. Mask , 68 Mich. App. 104 ( 1976 )

T. M. Burns, P. J.

Defendant was convicted by a jury of uttering and publishing a forged instrument. MCLA 750.249; MSA 28.446. He was sentenced to 2-1/2 to 14 years in prison and appeals as of right.

At trial, James Cooper testified that while he was working as a cashier at Don’s Truck Stop on May 2, 1974, defendant entered the truck stop and placed a check before him. Mr. Cooper’s relevant testimony was as follows:

"Q. Did he say anything to you, when he came into the station, sir?

"A. Not anything what he said. He was mumbling, and he just laid the check up there and said he wanted to cash it.

”Q. What did you do when Mr. Mask put the check up on the counter?

’A. I asked for identification.

"Q. Did you look at the check, at all?

’A. Yes, I looked at it.

"Q. Did you see that endorsement at that time?

"A. Yes, I did.

"Q. And what was Mr. Mask’s action, response when you asked for identification?

’A. He told me he didn’t have any.

”Q. What did you do at that point, sir?

’A. I couldn’t take the check.

r,Q. Now after that time, did anyone else enter the station?

’A. After that time, Mr. Lonnie entered.”

Mr. Lonnie, who apparently accompanied defendant to the truck stop, stated to the cashier that he would endorse the check. He endorsed his name and added his driver’s license number and address. The cashier agreed to cash the check, stating that he would have to go and get the money. Leaving defendant and Lonnie standing at the counter, Cooper called the police. After 15 minutes, the police arrived with the defendant and Lonnie still standing at the counter. It was later determined that the check had been stolen and that the payee’s name (Stephen W. Wood) had been forged thereon. Of the issues raised on appeal, one merits discussion and mandates reversal.

Did the trial court commit reversible error by denying defendant’s motion for a directed verdict because the evidence produced at trial was insufficient as a matter of law to convict defendant of the crime charged?

Two of the elements of the crime of uttering and publishing which must be proven beyond a reasonable doubt are knowledge of the falsity of the instrument and intent to defraud. People v Kimble, 60 Mich App 690, 694; 233 NW2d 26 (1975). There was insufficient evidence produced by the prosecutor to prove these elements.

Defendant’s "knowledge” of the falsity of the check was proven by the weakest of circumstantial evidence. The evidence produced at trial was not sufficient as it was clearly not inconsistent with other reasonable hypotheses upon which defendant’s innocence might be maintained. People v Wingfield, 62 Mich App 161; 233 NW2d 220 (1975).

The evidence indicated that defendant sought to cash a U.S. Treasury check payable to a Stephen Wood. The check was endorsed in the name of the payee. When asked for identification, defendant responded that he had none. Defendant did not represent himself as Stephen Wood. Mr. Wood testified that he never received the check, that the endorsement was not his signature, and that he had not authorized the endorsement. There was no evidence that the check had been stolen or endorsed by the defendant.

The prosecutor argues that defendant tacitly put himself forward as Stephen Wood by presenting the check and by not stating that he was not the payee. It is also urged that proof of the mental elements of the crime can be based upon the fact that Stephen Wood neither endorsed the check nor authorized another to do so. These facts are equally probative of the argument that someone other than defendant stole the check, forged the endorsement and passed it to the defendant.

Evidence of such elements as knowledge of falsity and intent to defraud is rarely clear and convincing and often can only be proven with circumstantial evidence. In the instant case, however, there is an almost total lack of probative evidence of these elements. We can only conclude that the prosecutor’s burden of proving defendant’s guilt beyond a reasonable doubt was not met. Cf. People v Gadson, 348 Mich 307; 83 NW2d 227 (1957).

Reversed.

M. F. Cavanagh, J., concurred.