McKinney v. State , 143 Miss. 38 ( 1926 )

^* Corpus Juris-Cyc. References: Forgery 26CJ, p. 897, n. 18; p. 903, n. 91; p. 978, n. 60; p. 979, n. 90. The appellant was indicted for forgery, and was tried and convicted on the theory that he was an accessory before the fact of the forging of a check by Worthy Bolton, a negro girl, who was the chief witness for the state. She testified that the appellant offered her two hundred dollars to go away with him; that he had one hundred dollars in money, which he gave to her, and produced a check on the Bank of Batesville which he told her would have to bear the signature of R.W. Towles, because they lived on Towle's place, and under the direction of the appellant she made out the check and signed R.W. Towles' name to it; that the appellant carried her to Batesville; and that she went to the Bank of Batesville, presented the check, and secured the money thereon. It appears that the bank paid the check believing that it was genuine, but in a few minutes Mr. Towles came into the bank, and he was asked about the check, when it was discovered that it was a forgery. Thereupon a search was made for Worthy Bolton, and she was found and arrested, and the money obtained from the bank was found upon her person. She was taken to the bank, where she was told that they knew she had some confederate or some assistance in forging the check, and, if she would disclose the name of the person so assisting her, the bank would try to have the offense made lighter on her. The appellant was not with Worthy Bolton when she cashed the check, and his connection therewith is established by the evidence of Worthy Bolton.

It is first insisted by the appellant that the evidence is not sufficient, because her story was unreasonable. It has been held in a number of instances in this state that the testimony of an accomplice, if worthy of credit, is sufficient to sustain a conviction, although it is not corroborated. We do not think the testimony of the girl so unreasonable upon its face as to be unbelievable, and it was the province of the jury to decide between the testimony of the appellant and that of Worthy Bolton; and we hold that the evidence is sufficient, if believed by the jury, to sustain the conviction.

The second assignment of error is that the court erred in giving instruction No. 1 for the state, which is the only instruction given for the state. This instruction reads as follows:

"The court instructs the jury for the state that, if you believe from the evidence beyond a doubt that the defendant was present and aided, assisted, or abetted Worthy Bolton in writing the check in question, and that he advised her in having the check cashed, and if you do so believe, it is your duty to convict the defendant."

The complaint made of this instruction is that it leaves out the essential element, "with intent to defraud," embraced in the statute upon which the offense is predicated.

In May v. State, 115 Miss. 708, 76 So. 638, the court was called upon to pass upon the sufficiency of an indictment under this statute, omitting this same clause in the statute. The court held that it was necessary for the indictment to charge that the forgery was done with the intent to defraud, and that this was a fatal defect in the indictment, and reversed the case. The court held, in the case of William v. State, 128 Miss. 271, 90 So. 886, that, in a prosecution for forgery, where the defendant was prosecuted upon the theory that he was an accessory before the fact and therefore a principal under the statute, it was necessary to charge and prove the facts which would show the guilt of the appellant. Analogous holdings to these are found inMay v. State, supra.

It was therefore error for the court to give this instruction omitting the hypothesis that forgery must be committed with the intent to defraud; and, as no instruction for the defendant cured this omission, the judgment of the lower court must be reversed, and the case remanded.

Reversed and remanded.