OPINION
RUSSELL, Judge.
The defendant-appellant, Bobby R. Anderson, appeals his conviction under both counts of a two-count indictment charging him with (1) forgery and (2) uttering a forged instrument. The jury set punishment at three years in each case, recommending that they be ordered to be served concurrently; but the trial judge, after a hearing in which Anderson’s many past crimes were made to appear, required consecutive service of the two three year sentences.
The predominant question raised upon this appeal is whether or not both of these convictions can stand. The State’s proof was that Anderson showed up in a market in possession of a valid check in the amount of $157.21 made payable to one Willie Boring. The cheek was issued to Boring by Yeach-May-Wilson, Inc. in payment for lumber, and was mailed to Boring, delivered to his mailbox, but never received by him. Anderson picked out a few groceries from the food market and carried them to the cashier. There, in her presence, he endorsed the name of Willie Boring to the check, and it was accepted by the cashier and full payment made upon it. No identification was required of Anderson, and his name was not endorsed upon the check.
To say that the courts of this State have had difficulty in formulating a clear and workable rule for determining whether two closely related convictions can both stand is to simply relate history. However, both our Supreme Court and this Court have recently readdressed the problem, and a formula has emerged. The leading case is [87]*87State v. Black, 524 S.W.2d 913 (Tenn.1975), which characterized the problem as being one of identity of offenses. The Court stated that each case required close and careful analysis of the offenses involved, the statutory definitions of the crimes, the legislative intent and the particular facts and circumstances. In another opinion released on the same day, State v. Scates, 524 S.W.2d 929 (Tenn.1975), the Court expressly adhered to the principle that the test is not whether the offenses involve the “same transaction”, but rather whether the same evidence was required to prove both of them. In the case of State v. Briggs, 533 S.W.2d 290 (Tenn.1976), our Supreme Court overruled a prior holding and ruled that one who committed murder while perpetrating a robbery could be convicted of both armed robbery and first degree murder. This Court, in the case of Greer v. State, 539 S.W.2d 855 (Tenn.Cr.App.1976), applied Black to the case of dual convictions for burglary (breaking and entering with the intent to commit rape) and rape, and held that both convictions could stand, expressly overruling the earlier case of Walton v. State, 1 Tenn.Cr.App. 668, 448 S.W.2d 690 (1969).
It is beyond dispute that forgery and uttering a forged instrument are separate and distinct offenses, and that neither is included within the other. Buren v. State, 84 Tenn. 61 (1885); Baldwin v. State, 213 Tenn. 49, 372 S.W.2d 188 (1963). Forgery is the fraudulent making or alteration of any writing to the prejudice of another’s rights. T.C.A. § 39-1701. The common law offense of uttering is carried in T.C.A. § 39-1704 and described as being committed when any person fraudulently passes or transfers, or offers to pass or transfer, any forged paper, knowing it to be forged, with intent to defraud another.
In the case at bar, the indictment avers that the forgery was committed with the intent to defraud Willie Boring, the payee; while it is said that the transfer or passing of the check was with the intent to defraud Chester Sterling d/b/a Sterling’s IGA.
To point up the separate character of these two offenses, our Supreme Court has held that where one is charged only with forgery that it is reversible error to prove the selling or transfer of the instrument. Luttrell v. State, 85 Tenn. 232, 1 S.W. 886 (1886).
The exact question presented upon this appeal has not been directly addressed in a reported decision of our Supreme Court or of this Court. The unreported case of Larry Michael Otis v. State, relied upon by the Appellant, was decided by a panel of this Court and filed at Jackson on March 10, 1976. However, in denying petitions for certiorari filed by both parties, our Supreme Court expressly concurred in result only. (In Otis, while this Court held that only one conviction could stand, the sentences had been made concurrent, so that no change of effective sentence resulted.)
Because of the diversity of approaches by the many jurisdictions to this problem of multiple related convictions, and the differences in offense definitions made there, it is of little help to look outside our State for guidance. We find this language in 2 R. Anderson, Wharton’s Criminal Law and Procedure, page 437, § 648 (1957):
Uttering a forged instrument consists in offering to another the forged instrument with a knowledge of the falsity of the writing and with intent to defraud. Uttering is an offense at common law. In many jurisdictions uttering is an offense distinct from that of forgery, and a defendant may be guilty of uttering a forged instrument although he is not the forger. Sometimes, however, the two are held to constitute a single offense when committed by the same person in the course of the same transaction, and it has been declared that they are generally so considered, the question under consideration being whether separate sentences can be imposed on a plea of guilty to two counts * * *.
The same text writer, on pages 443 and 444, § 651, says:
In the absence of a statute to the contrary, forgery of an instrument and its uttering are distinct offenses within the [88]*88rule of former jeopardy. The rule, therefore, that a person may be prosecuted only once for the same transaction, or for offenses growing out of the same transaction, does not obtain in cases of forgery and the passing of forged instruments, because they are not one and the same transaction, and an acquittal of a charge of forgery is no bar to a prosecution for the uttering and passing of the instrument forged. The rule, of course, is subject to statutory provisions assimilating the two crimes.
What makes the instant case a hard one is the fact that both crimes were committed at the same place at nearly the same time, and to achieve one end result. However, check forgery and uttering, though clearly separate offenses, always intend the ultimate fraudulent passing to be the end goal, although the crime of forgery is completed before the transfer is even attempted. Unity of intent does not merge the offenses. Greer v. State, supra, dealt with a unified intent, i.e. a breaking and entering with the intent to rape, and with the intended rape. Our Supreme Court has expressly rejected the same transaction test. State v. Black, supra; State v. Seates, supra;
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
RUSSELL, Judge.
The defendant-appellant, Bobby R. Anderson, appeals his conviction under both counts of a two-count indictment charging him with (1) forgery and (2) uttering a forged instrument. The jury set punishment at three years in each case, recommending that they be ordered to be served concurrently; but the trial judge, after a hearing in which Anderson’s many past crimes were made to appear, required consecutive service of the two three year sentences.
The predominant question raised upon this appeal is whether or not both of these convictions can stand. The State’s proof was that Anderson showed up in a market in possession of a valid check in the amount of $157.21 made payable to one Willie Boring. The cheek was issued to Boring by Yeach-May-Wilson, Inc. in payment for lumber, and was mailed to Boring, delivered to his mailbox, but never received by him. Anderson picked out a few groceries from the food market and carried them to the cashier. There, in her presence, he endorsed the name of Willie Boring to the check, and it was accepted by the cashier and full payment made upon it. No identification was required of Anderson, and his name was not endorsed upon the check.
To say that the courts of this State have had difficulty in formulating a clear and workable rule for determining whether two closely related convictions can both stand is to simply relate history. However, both our Supreme Court and this Court have recently readdressed the problem, and a formula has emerged. The leading case is [87]*87State v. Black, 524 S.W.2d 913 (Tenn.1975), which characterized the problem as being one of identity of offenses. The Court stated that each case required close and careful analysis of the offenses involved, the statutory definitions of the crimes, the legislative intent and the particular facts and circumstances. In another opinion released on the same day, State v. Scates, 524 S.W.2d 929 (Tenn.1975), the Court expressly adhered to the principle that the test is not whether the offenses involve the “same transaction”, but rather whether the same evidence was required to prove both of them. In the case of State v. Briggs, 533 S.W.2d 290 (Tenn.1976), our Supreme Court overruled a prior holding and ruled that one who committed murder while perpetrating a robbery could be convicted of both armed robbery and first degree murder. This Court, in the case of Greer v. State, 539 S.W.2d 855 (Tenn.Cr.App.1976), applied Black to the case of dual convictions for burglary (breaking and entering with the intent to commit rape) and rape, and held that both convictions could stand, expressly overruling the earlier case of Walton v. State, 1 Tenn.Cr.App. 668, 448 S.W.2d 690 (1969).
It is beyond dispute that forgery and uttering a forged instrument are separate and distinct offenses, and that neither is included within the other. Buren v. State, 84 Tenn. 61 (1885); Baldwin v. State, 213 Tenn. 49, 372 S.W.2d 188 (1963). Forgery is the fraudulent making or alteration of any writing to the prejudice of another’s rights. T.C.A. § 39-1701. The common law offense of uttering is carried in T.C.A. § 39-1704 and described as being committed when any person fraudulently passes or transfers, or offers to pass or transfer, any forged paper, knowing it to be forged, with intent to defraud another.
In the case at bar, the indictment avers that the forgery was committed with the intent to defraud Willie Boring, the payee; while it is said that the transfer or passing of the check was with the intent to defraud Chester Sterling d/b/a Sterling’s IGA.
To point up the separate character of these two offenses, our Supreme Court has held that where one is charged only with forgery that it is reversible error to prove the selling or transfer of the instrument. Luttrell v. State, 85 Tenn. 232, 1 S.W. 886 (1886).
The exact question presented upon this appeal has not been directly addressed in a reported decision of our Supreme Court or of this Court. The unreported case of Larry Michael Otis v. State, relied upon by the Appellant, was decided by a panel of this Court and filed at Jackson on March 10, 1976. However, in denying petitions for certiorari filed by both parties, our Supreme Court expressly concurred in result only. (In Otis, while this Court held that only one conviction could stand, the sentences had been made concurrent, so that no change of effective sentence resulted.)
Because of the diversity of approaches by the many jurisdictions to this problem of multiple related convictions, and the differences in offense definitions made there, it is of little help to look outside our State for guidance. We find this language in 2 R. Anderson, Wharton’s Criminal Law and Procedure, page 437, § 648 (1957):
Uttering a forged instrument consists in offering to another the forged instrument with a knowledge of the falsity of the writing and with intent to defraud. Uttering is an offense at common law. In many jurisdictions uttering is an offense distinct from that of forgery, and a defendant may be guilty of uttering a forged instrument although he is not the forger. Sometimes, however, the two are held to constitute a single offense when committed by the same person in the course of the same transaction, and it has been declared that they are generally so considered, the question under consideration being whether separate sentences can be imposed on a plea of guilty to two counts * * *.
The same text writer, on pages 443 and 444, § 651, says:
In the absence of a statute to the contrary, forgery of an instrument and its uttering are distinct offenses within the [88]*88rule of former jeopardy. The rule, therefore, that a person may be prosecuted only once for the same transaction, or for offenses growing out of the same transaction, does not obtain in cases of forgery and the passing of forged instruments, because they are not one and the same transaction, and an acquittal of a charge of forgery is no bar to a prosecution for the uttering and passing of the instrument forged. The rule, of course, is subject to statutory provisions assimilating the two crimes.
What makes the instant case a hard one is the fact that both crimes were committed at the same place at nearly the same time, and to achieve one end result. However, check forgery and uttering, though clearly separate offenses, always intend the ultimate fraudulent passing to be the end goal, although the crime of forgery is completed before the transfer is even attempted. Unity of intent does not merge the offenses. Greer v. State, supra, dealt with a unified intent, i.e. a breaking and entering with the intent to rape, and with the intended rape. Our Supreme Court has expressly rejected the same transaction test. State v. Black, supra; State v. Seates, supra; State v. Briggs, supra; as had this Court in Greer v. State, supra.
Applying the tests of Black, we identify these as separate offenses, requiring separate evidence; and can discern no legislative intent that they be merged. Following Black’s direction to look also to the particular facts and circumstances, we see this as an Unusual example of separate perpetrations, because of the unity of place and near unity of time; but this does not change the fact that two crimes were in fact and law committed.
This leads into the next question, which is whether or not this is a proper case for consecutive sentences. Applying the guidelines of Gray v. State, 538 S.W.2d 391 (Tenn.1976), to the action of the trial judge, we find no abuse of discretion in his holding that Anderson’s past record called for consecutive sentences. In Gray’s terms, he was both a persistent and a multiple offender. At the hearing upon the matter, the State presented that Anderson had three prior convictions in the same Court for forgery and uttering, that many other like offenses were not even prosecuted, that he had a prior burglary conviction in the same Court, that he was at that time a fugitive from North Carolina for jumping bail on a burglary conviction, and that he was also wanted in North Carolina on a charge of larceny and receiving and concealing stolen property-
We affirm the setting of consecutive sentences. This is especially fitting since the jury, not having knowledge of this criminal record, set only minimum sentences.
The assignments of error attacking the wording of the counts in the indictment are without merit. The offenses were well stated, if a bit fully.
Finally, complaint is made of one portion of the judge’s charge, wherein he instructed the jury:
I further charge you that where a defendant makes no explanation of his acquisition and possession of a forged instrument made payable to him, title to which he claims, or claims to be the payee, although he is not, and which he cashed or offered to cash, raises the presumption of his guilt and you would be justified to convict him.
The thrust of the complaint against this charge is that it told the jury “that possession of a forged instrument raises a presumption of guilt unless the possessor explains his possession”, and that this places a burden upon the defendant to testify in violation of the Fifth Amendment right to remain silent.
In the context of this case, wherein the only thing that is factually involved that is covered by the charge is the implicit claim of Anderson to be the payee when he was not, and the judge instructed the jury that it would be justified to convict him, not that it must, we hold that error in this charge, if any, was at most harmless. It is important to note that such presumption was not said to mandate a conviction. Bush [89]*89v. State, 541 S.W.2d 391 (Tenn.1976), deals with an analogous presumption, and makes clear the importance of this point. It is also important to observe that under the facts of this case, wherein Anderson forged the endorsement and then passed the check all within the view of the cashier, that it was really not necessary to tell the jury that this raised a presumption of his guilt of passing a forged check, since it so clearly made out all of the elements of the crime. Obviously, Anderson transferred a forged paper, knowing it to be forged, with intent to defraud. This, even with the charge, really raised no more of a presumption of guilt than would occur in any case wherein all of the elements of a crime were prima facie established. A rebuttable presumption of guilt which is said to arise upon the proof of certain facts is really no more than the statement of a pre-verdict judicial appraisal that acceptable proof of those facts, where unrebutted, sufficiently makes out the State’s case as a matter of law, if and when accepted by the jury as convincing beyond a reasonable doubt of the guilt of the accused.
We have carefully examined all of the assignments of error; and, having found no reversible error, affirm the convictions and consecutive sentences.
GALBREATH, J., dissenting.
DAUGHTREY, J., separately concurring.