State v. McIntosh

BRANCHFIELD, J.

Defendant and one Henry Joseph Gaskill were charged with the crime of knowingly uttering and publishing a forged cheek. They were found guilty, and defendant has appealed from the judgment of conviction.

•A social security check was issued, payable to defendant’s mother, but the mother died a few days prior to the receipt of the cheek. Defendant had been living with and caring for her mother. She had signed her inother’s name to social security cheeks numerous times, but always with her mother’s consent.

The day after the mother’s funeral defendant endorsed the check, using her mother’s name, and gave the check to Gaskill who went to buy groceries with it. The grocer became suspicious and did not honor the check. He called the police who then arrested Gaskill. Defendant admitted signing her mother’s name, saying she thought she was entitled to do so as she was the only heir. She gave various explanations of subsequent events leading to the attempt to cash the check. She discussed the case with the district attorney, and was indicted and arrested about three weeks after Gaskill’s arrest.

Defendant’s first assignment of error accuses the court of failing to instruct the jury that an intent to injure and defraud is an essential element of the crime charged. The parties agree that such intent must be found by the jury in order for it to convict. See State v. McGowan, 218 Or 455, 345 P2d 831 (1939). While the questioned instruction does not as clearly spell out that element as does the Oregon State Bar’s Uniform Jury Instructions, instruction no. 260.11, the instructions as a whole told the jury there could be no guilty verdict in the absence of finding that such intent had existed. The instructions must be considered as a whole. See State v. Hammick, 2 Or App 470, 469 P2d 800 (1970), State v. Keffer, 3 Or App 57, 471 P2d 438 (1970).

Defendant’s second assignment of error is that the court refused to reinstruct the jury upon its request, concerning the language of the “verdict slip.” The advisability of reinstructing the jury lies within the sound discretion of the trial court. State v. Flett, 234 Or 124, 380 P2d 634 (1963). Defendant did not object to the refusal of the court to give a further instruction. Only if such refusal amounted to egregious error can she now obtain relief on that ground.

Defendant argues that the request for more information indicates the jury was confused as to whether intent to injure or defraud was a necessary element of the crime charged, and that therefore we should examine the circumstances and find reversible error. Due to the inadequacy of the record, ,we • are unable to give this assignment the attention it may well deserve because of its relationship to the first assignment. The jury sent a note to the trial judge requesting further instruction. That note was not sent to this court as part of the record. The report of the incident in the transcript does not disclose whether the judge read the note aloud and, if so, which words attributed to the judge were his own and which were contained in the jury’s note. Readily apparent mistakes elsewhere in the transcript, and the incomprehensibility of what the judge allegedly said, raise doubts as to whether the judge was quoted with exactitude. We cannot determine whether there was error nor, if so, whether it was serious. But it is not necessary for us to rule on this assignment because we must reverse for another reason, and it is unlikely that the same circumstances will arise in the event of retrial.

Defendant contends that denial of her motion for a mistrial constitutes reversible error. That motion was based upon a reoffer by the prosecutor of a statement by defendant which had been suppressed previously. It is settled that granting or denying a motion for a mistrial is largely within the sound discretion of the trial judge. See, e.g., State v. Hoffman, 236 Or 98, 385 P2d 741 (1963). Neither the statement complained of nor its substance was placed before the jury. The trial judge properly exercised his discretion.

The trial court instructed the jury that ten of their number were sufficient to return a verdict. That instruction was properly given. See State v. Gann, 254 Or 549, 463 P2d 570 (1969).

Twenty-five exhibits.were offered in this case, of which 24 were admitted. The record as transmitted to ns contains only 10 exhibits. The missing exhibits are not accounted for by the trial court clerk. The lack of exhibits and the imperfect transcript interfered with review of the case on its merits. We have some doubt as to the sufficiency of the evidence to make a jury question on the element of intent to defraud, but since that question was not raised we do not decide it.

5. The jury was polled after it returned its verdict. According to the transcript, nine jurors answered “yes” to the question, “Is this your verdict?” Two jurors answered “no.” We do not know the answer of the twelfth juror, if he existed. The Oregon Constitution, Art I, § 11, says in part, “* * * provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, * * The court reporter has certified the transcript as being true and accurate, and the trial judge has entered an order settling the transcript. We must accept the certificate and the order as being sufficient to overcome our suspicions of inaccuracy. If only nine members agreed, there was no verdict.

Reversed and remanded.