concurring.
I concur fully in the opinion filed in this case by my colleague, Judge Russell. In view of the separate dissenting opinion filed by Judge Galbreath, I conclude that two further comments are appropriate.
In the first place, the hypothetical analogies posed by Judge Galbreath must be distinguished from the case at hand. In each of the given examples, the “forged” document is a creation of the forger. But in this case the instrument forged was not a sham; it was an actual check, which, it is fair to assume from the record, was stolen from the mail or from the constructive possession of the actual payee. Under such circumstances the forgery of the payees name is at least prima facie evidence of an intent to defraud on the part of the forger.
Furthermore, the case of Patmore v. State, 152 Tenn. 281, 277 S.W. 892 (1925), relied on heavily by Judge Galbreath in his dissent, has been thoroughly eroded, if not overruled sub silentio, by subsequent decisions of the Tennessee Supreme Court. In State v. Black, 524 S.W.2d 913 (Tenn.1975), the court traced the development of a line of cases supporting the “same intent-same transaction” rule exhibited in Patmore. This line of cases had culminated in Acres v. State, 484 S.W.2d 534 (Tenn.1972). After examining the Patmore-Acres rationale, and testing it against the rule developed in a parallel line of cases, a line of cases which culminated in Duchac v. State, 505 S.W.2d 237 (Tenn.1973), the court in Black reaffirmed Duchac and confined Acres to its facts (felony murder). 524 S.W.2d at 919. Seven months later, in State v. Briggs, 533 S.W.2d 290 (Tenn.1976), the court reversed Acres outright.
I conclude that if Patmore was ever good law after Duchac, the case is no longer controlling. It is noteworthy also that the separate convictions in Duchac were for possession of burglary tools and burglary, a situation analytically similar to the forgery-uttering charges now before us.
As previously stated, I concur in Judge Russell’s opinion.