Howard v. State

Benham, Judge.

Appellants Howard and Green were both named in an indictment charging them with 11 counts of forgery in the first degree. OCGA § 16-9-1 (a). After the trial court directed a verdict of acquittal in favor of appellant Green on Count 11, the jury returned guilty verdicts against both appellants on each of the remaining counts. In their consolidated appeals from the judgments entered on the jury verdicts, appellants maintain that the evidence was not sufficient to sustain their convictions. Appellants specifically point to the testimony of their accomplice and contend it was not sufficiently corroborated, resulting in a lack of sufficient evidence to sustain the verdicts. See OCGA § 24-4-8. We disagree.

The State presented evidence from the victim that appellants, his part-time employees, had access to the desk drawer in which he kept his blank checks. An accomplice, appellant Howard’s brother, testified that he saw appellants in possession of blank checks which had the victim’s name imprinted on them; he watched appellants write on the blank checks, appellant Green, normally right-handed, using his left hand to do so; and that both men had told the accomplice/witness that they were going to make some money. The accomplice then recounted various trips he had made with appellants to business establishments which appellants would enter with the forged checks, return with goods and cash, and commingle the proceeds. Each check, complete with endorsement and deposit stamp, was admitted into evidence.

“[Presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. [Cit.]” Lunz v. State, 174 Ga. App. 893, 895 (332 SE2d 37) (1985). Since there was evidence that appellants associated themselves in an unlawful enterprise, “any act done in pursuance of the conspiracy by one of the conspirators is in legal contemplation the act of all . . . [and each] is responsible for the acts of the [other] only so far as such acts are naturally or necessarily done pursuant to or in furtherance of the conspiracy. [Cits.]” Shehee v. State, 167 Ga. App. 542 (1) (307 SE2d 54) (1983). Thus, it is not necessary to present evidence of each appellant’s actual participation in each phase of each crime in order to sustain the convictions. Our review of the trial transcript leads to the conclusion that the testimony elicited from appellants’ accomplice, as well as from a handwriting analyst and various police officers, was sufficient to support most of the guilty verdicts returned against appellants.

While the corroboration must be independent of the accomplice’s *188testimony and must connect the defendants to the crime or lead to the inference of their guilt, “the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. [Cit.]” Castell v. State, 250 Ga. 776 (1c) (301 SE2d 234) (1983). “[Sufficient corroboration may consist of either direct or circumstantial evidence which connects the defendant with the crime, tends to show his participation therein, and would justify an inference of the guilt of the accused independently of the testimony of the accomplice. [Cits.]” Gunter v. State, 243 Ga. 651 (2) (256 SE2d 341) (1979).

A handwriting expert positively identified appellant Howard’s handwriting in the endorsement of the check described in Count 5 and testified that the endorsements of the checks in Counts 1, 2, 4, and 7 showed similarities to the handwriting exemplar provided by appellant Howard. The expert also stated that writing on each of the checks involved in Counts 1-10 contained “isolated similarities” to the exemplar provided by appellant Green. She admitted that writing written by a right-handed person with his left hand would contain distortions “but you would have similarities.”

The accomplice recalled accompanying appellants to the four business establishments at which nine of the checks were negotiated. The endorsements on the back of the checks corroborate that negotiation took place at those businesses. Although the accomplice could not state which one of the appellants actually negotiated each check, he stated they would both go in with a check and return with goods and cash. Coupled with this testimony is the handwriting expert’s positive identification of appellant Howard’s handwriting in the endorsement on the check in Count 5, and her finding of similarities to Howard’s handwriting on the endorsements of the checks named in Counts 1, 2, 4, and 7. Under the parties to a crime theory, it is unnecessary to determine which of the two appellants actually negotiated the check. Both are held equally responsible.

While Howard endorsed the check in Count 5, there was evidence he negotiated it in Green’s presence since the accomplice testified he accompanied both appellants to the place where this check was negotiated. Thus, Green is equally culpable.

Count 3 involves the one check negotiated at a liquor store. The endorsement contained Green’s driver’s license number. The Moultrie police log for the day on which the check was negotiated contained an entry that Green had visited the station to report a “Signal 28,” which could cover the report of a stolen wallet. The accomplice had earlier testified that, after being required to present his driver’s license in order to cash the check at the liquor store, Green had de*189cided to report his wallet as stolen. They then drove to the police station where Green made the report while appellant Howard kept Green’s wallet.

The arresting officer testified that appellants denied participation when he confronted them with his suspicions concerning their involvement. Appellant Howard, however, offered to make restitution to his employer/victim as to the checks containing Howard’s name, Counts 5 and 8. This, along with the accomplice’s testimony, and appellants’ continuing course of conduct was sufficient evidence to support the jury’s guilty verdicts.

The checks in Counts 6 and 10 contained similarities to Green’s handwriting and were negotiated at the same business where the check in Count 8 was negotiated. While the accomplice mentioned only one check-cashing trip to that business, he testified that sometimes more than one check would be presented for negotiation. We are not willing to reverse these convictions because the accomplice did not detail three separate trips to the business.

Both the owner and cashier of the business at which the check described in Count 11 was cashed testified that appellant Howard and his brother entered the store together where the witnesses cashed the check and handed the proceeds to the accomplice in appellant Howard’s presence.

Since there was no evidence presented concerning the uttering of the check described in Count 9, appellants’ convictions as to that count must be reversed.

The dissent would reverse the convictions on Count 3 for failure to prove venue. Citing Rowland v. State, 90 Ga. App. 742 (84 SE2d 209) (1954), the dissent concludes that venue for forgery in the first degree is in the county in which the uttering takes place. In Rowland, the defendant was charged with forging a bill of sale, and the State established venue as the place where the forgery was uttered. The court pointed out that forging and uttering were, at that time, separate and distinct offenses, and that proving venue as to uttering did not establish the venue as to forgery. In the present-day statute under which appellants were charged, forgery in the first degree consists of knowingly making, altering, or possessing a writing purporting to have been made by another person and uttering or delivering such writing. OCGA § 16-9-1 (a). The dissent contends the convictions in Count 3 must be overturned because there was no proof that the liquor store where the check was cashed was in Colquitt County, the site of the prosecution. However, the State did establish that appellants filled in the blank areas of the checks in Colquitt County. It would seem only reasonable that evidence that a forged instrument was forged in a given county would, in the absence of evidence to the contrary, warrant the inference by the jury that the uttering was com*190mitted in that county. Goldstein v. State, 94 Ga. App. 437 (3) (95 SE2d 47) (1956).

Judgments affirmed in part and reversed in part.

Banke, C. J., Been, P. J., McMurray, P. J., Birdsong, P. J., Carley, and Pope, JJ., concur. Sognier and Beasley, JJ., concur in part and dissent in part.