STATE V. BIBBINS, 1960-NMSC-006, 66 N.M.
363, 348 P.2d 484 (S. Ct. 1960)
STATE of New Mexico, Plaintiff-Appellee,
vs.
Earl BIBBINS, Defendant-Appellant
SUPREME COURT OF NEW MEXICO
1960-NMSC-006, 66 N.M. 363, 348 P.2d 484
Prosecution for knowingly uttering a
forged instrument with intent to defraud. From adverse judgment of the District
Court, Curry County, E. T. Hensley, Jr., D. J., the defendant appealed. The
Supreme Court, McGhee, C.J., held that the evidence was insufficient to sustain
the conviction.
Blythe & Norvell, Clovis, for
appellant.
Hilton A. Dickson, Jr., Atty. Gen., Carl
P. Dunifon, Asst. Atty. Gen., for appellee.
McGhee, Chief Justice. David W. Carmody
and Moise, JJ., concur. Compton, J., dissenting. Chavez, J., not participating.
{*364} {1} The appellant was convicted of knowingly uttering
a forged instrument with intent to defraud and was sentenced to a term in the
penitentiary. He seeks a reversal on the grounds that the trial court erred in
denying his motion for a directed verdict, and that the evidence introduced
against him is insufficient to support the verdict of guilty which was returned
by the jury.
{2} The record in the case
establishes the following:
1. That the defendant cashed the check for $25 at Levines'
store in Clovis after he had presented his chauffeur's license for
identification, and received therefor some merchandise and cash. He claimed
that the maker of the check had given it to him in payment for three days of
work.
2. That the purported signer of the check did not have an
account in the bank on which it was drawn.
3. That the bank declined to honor the check.
4. That the defendant told the sheriff of Curry County that
the work he had performed for the drawer of the check was, in part, hauling
scrap lumber from one part of Clovis to another, and also hauling trash to a
place where it had been dumped.
5. Some ten days after he had cashed the check he was taken
from the jail by the sheriff to the places where the trash and lumber had been
picked up, as well as unloaded, and the sheriff testified that he had been
unable to discover any evidence of the materials being picked up or unloaded.
6. That the defendant had previous felony and misdemeanor
convictions.
7. That the sheriff was unable to find anyone in Clovis who
knew the purported signer of the check, T. J. Harris.
{3} The trial court correctly
instructed the jurors that before they could return a verdict of guilty it must
have been proved to their satisfaction and beyond a reasonable doubt that,
among other things, the check was forged.
{4} There is ample evidence
that the maker of the check did not have an account in the Clovis bank on which
it was drawn, but there is not one iota of evidence that it was a forgery.
{5} Both points urged as
grounds for reversal must therefore be sustained and the conviction reversed
and the cause remanded to the district court with instructions to set aside the
verdict and sentence, and to discharge the defendant.
{*365} COMPTON,
Justice (dissenting).
{7} While the evidence is
circumstantial, I deem it substantial. A true picture of appellant is reflected
by his previous record. He had been convicted of three felonies and various
misdemeanors. His first felony conviction was for burglary in 1937; the second
was for burglary in 1945; and the third was for grand larceny in 1952.
{8} When arrested, appellant
was unable to give an account of Harris, only that the check was given in
payment of three days work for Harris in doing yard work and hauling trash and
scrap lumber. At the trial, he explained his failure to locate Harris by the
fact that he had been in jail since his arrest shortly after the check was
given. But this explanation does not stand up. The sheriff of Curry County
testified that at appellant's request he had taken appellant to various places
where he claimed to have worked for Harris. Appellant first directed the
sheriff to take him to the Bella Vista Addition from which he had hauled trash
and scrap lumber. Arriving there, the sheriff failed to find any evidence that
appellant had performed work there of any kind. Actually the lot where
appellant had directed him to go belonged to one Eastwood, which was used by
Eastwood for the storage of equipment. Next, appellant directed the sheriff to
go to the stock pens to a place immediately south of Clovis Branding Company
Office where he had dumped the trash and scrap lumber. The sheriff and
appellant looked over this area and found no signs that trash or scrap lumber
had been dumped there. Finally, appellant directed the sheriff to take him to
Swartzman Packing Company and Feed Pens were Harris "had hung around there
some." Inquiry at the feed pens disclosed that a person by the name of
Harris was unknown there.
{9} Being faced at the trial
by these statements, appellant gave an entirely different story as to the
places be had worked for Harris. He then testified that the work performed for
and with Harris was in the 1100 block on Rancher Street, on property belonging
to one Singleton, and that he had hauled the trash and scrap lumber to the
"Old Lover's Lane" dump site where it was dumped. He testified
further that he and another party whose name he could not remember, did some
hauling of grain for Harris to Farwell Pens. He also testified that the check
was given to him at the Foster home at 416 West Second Street. On rebuttal, the
sheriff testified that appellant never at any time while they were trying to locate
Harris mentioned the fact that the check had been given to him at the Foster
home, or that he worked for Harris in the 1100 block on Rencher Street, or that
he had hauled feed to the Farwell Pens.
{*366}
Besides all this, the sheriff and his deputies made an extensive and
independent investigation in the Clovis area in an attempt to locate Harris,
and this inquiry proved fruitless. And the personnel of the bank on which the
check was drawn knew no such person.
{10} Feeling that the
majority has reached an erroneous decision, I dissent.