dissenting.
Recognizing that the majority has sound, albeit conflicting, support for the holding that the acts of forgery and uttering, or passing, the forged instrument may be two distinct criminal acts subject to dual punishment, I cannot intellectually accept the result reached.
If the defendant had simply signed the check and nothing more, no prosecution at all would have resulted since no loss to anyone would have occurred. Forgery is the fraudulent making or altering of any writing to the prejudice of another’s right. T.C.A. § 39-1701.
*90One might make out a deed to his neighbor’s home and effect a facsimile of the owner’s signature to it. He might draft a note for one million dollars and sign Nelson Rockefeller as the maker. He might make out a bill of sale for the Brooklyn Bridge that purports to bear the signature of the appropriate official of the City and State of New York ostensibly conveying title to himself. He might do all of these acts but until he demonstrates that he did so with the intent and for the purpose of defrauding another person, no crime is committed.
It was the cashing of the check simultaneous with effecting the false signature that made the transaction unlawful. If the defendant had put the check in his pocket and went about his business, he would not have been in violation of law even though the clerk of the IGA store may have recognized that he had written someone else’s name as a signature. No prejudice to anyone would have occurred so long as the check remained in the defendant’s pocket, (other than in the obvious theft involved).
Even if technically the making and the passing of the check constituted separate criminal acts so far as I can determine no decision of our Supreme Court has even overruled the clear holding of Patmore v. State, 152 Tenn. 281, 277 S.W. 892 (1925):
“ ‘While, in view of these authorities, we feel constrained to hold that in a case like this the jury may find the prisoner guilty upon each count, and ascertain the punishment separately, we are of opinion that the usual and better practice in such cases is to find a general verdict for the two cognate offenses charged.’
“Even if it be conceded that two convictions and two punishments may be had in any case upon separate counts, the practice is not approved, and, certainly it must be clear that the offenses are wholly separate and distinct. Our own cases appear to prohibit the practice where the offenses grow out of one transaction and involve but one criminal intent.”
In view of the facts in this case and what appears to me to be controlling law and logic, I must respectfully dissent from the majority opinion.