Graves v. State , 148 Miss. 62 ( 1927 )

^* Corpus Juris-Cyc. References: Forgery, 26CJ, p. 971, n. 69; p. 974, n. 44; Indictments and Informations, 31CJ, p. 824, n. 51; p. 826, n. 78. Lorenzo Graves was indicted and tried in the circuit court of Jefferson Davis county on a charge of uttering a forgery, and was sentenced to serve a term of two years in the state penitentiary. The following pertinent facts are stated:

On December 9, 1926, Lorenzo Graves and another negro appeared in the store of C.J. Jones, near Prentiss, Miss., and together they bought a bill of goods, amounting to four dollars and twenty cents, appellant proffering in payment of this bill of goods a certain check drawn for nine dollars and eighty cents on the Bank of Collins, and purporting to have been signed by "Will Graves," and payable to the order of "Tanks Kings." Mr. Jones accepted this check and gave appellant the change. At this time the check had indorsed on it, "Tanks Kings." Mr. Jones asked the appellant if the indorsement on the back of the check was his (appellant's), and appellant said that it was. The check was deposited by Mr. Jones to his credit in the Blountsville Bank, and by that bank forwarded to the Bank of Collins for collection, and was returned in due course marked, "No account."

On the same night, just a short time prior to the time the check was passed to Mr. Jones by the appellant, said appellant attempted to cash said check at a filling station owned by Mr. William McPhail, in payment for gasoline, and on cross-examination Mr. McPhail testified as follows:

"This man (referring to appellant) give me the check, and I took it and looked at it, and I said, ``Is this the shoemaker at Prentiss?' and he said, ``Yes,' and I said, ``How come him to have money at Collins?' and Keys said, ``Let me see the check,' and took it."

And on direct examination Mr. McPhail testified that, in answer to a question, the defendant's companion answered:

"Yes, sir; Will Graves, Collins."

The state offered Will Graves, of Prentiss, as a witness, who testified that he did not give the check and did not sign it; that he was a shoemaker and lived near Prentiss; that he always signed his name to checks as "Willie Graves;" and that his name was not "Will," but "Willie."

During the progress of the trial, the indictment having set up a copy of the check in which "Tanks Keys" was payee, the proof developed that the payee's name was "Tanks Kings." The district attorney made a motion, in writing, to amend the indictment, which motion was sustained by the court in that particular, and an order indorsed on the minutes authorizing the amendment changing the name "Keys" to "Kings" wherever it appeared in the indictment, and he also moved to have the case continued upon his claiming surprise. Said district attorney did not show in what way he was surprised.

The appellant was indicted under section 1192, Code of 1906 (section 968, Hemingway's 1927 Code), for uttering a forgery. We think the amendment did not affect appellant's rights, nor was it shown, in any way, how appellant was affected by the change.Mackguire v. State, 91 Mass. 151, 44 So. 802. In this case the court permitted the indictment to be amended so as to change the name of the party alleged to have been defrauded from William Foster to the American Express Company. The identity of the offense was not changed in that case, nor is it changed in the instant case by changing the word "Keys" to "Kings." We do not think the case of May v. State, 115 Miss. 708, 76 So. 636, is in point, because it does not appear that the district attorney obtained permission of the court to amend by changing the name from "Bowels" to "Bowles," to conform to the proof.

The case of Bradley v. State, 128 Miss. 114, 90 So. 627, is not in point, because there the proof clearly disclosed an entirely different check to have been forged from that in the indictment, the two checks being introduced on the charge uttering a forgery.

Where no harm is done the defendant and the offense is identical after the amendment, the mere change of the name from "Keys" to "Kings," duly authorized by the court, is proper, and is especially provided for under section 1508, Code of 1906 (section 1329, Hemingway's 1927 Code), and the appellant was not prejudiced thereby; and it was not error to refuse to grant a continuance, where the identity of the offense is not changed, and no harm appears to have been done appellant, as he was fully informed of the nature of the accusation made against him by the grand jury which indicted him.

It was next insisted that the appellant was entitled to a peremptory instruction, because, it is alleged, there was nothing whatever to show that "Will Graves," the name signed to the check, did not in fact sign the check, and there was no evidence on the part of the state to show that the person named as drawer of the check did not in fact live at Collins, or in Covington county, state of Mississippi.

The state did introduce "Willie Graves," of Prentiss, Jefferson Davis county, and appellee insisted that there was no evidence to show that there was not a "Will Graves" living in Collins; and counsel then quotes from the direct examination, but omits to quote from the cross-examination, in which it is made clear that the appellant represented that "Will Graves," the maker of the check, was a shoemaker living near Prentiss. Will or Willie Graves was a shoemaker living near Prentiss, and when the state proved by him that he did not sign or give the check in controversy, the state had fully met the burden imposed upon it on the charge of uttering a forgery, under section 1192, Code of 1906 (section 968, Hemingway's 1927 Code), and we think that the jury was fully warranted in finding the appellant guilty of uttering a forgery.

There is no merit in any of the assignments of error presented to this court.

Affirmed.