Sherman v. State 359 So. 2d 1366

PATTERSON, Chief Justice,

for the Court:

Appellant was convicted of the crime of forgery by the Circuit Court of the Second Judicial District of Jones County, Mississippi, and received a sentence of one year in the county jail.

On appeal appellant alleges three assignments of error, to-wit:

1.The indictment which is the basis of appellant’s conviction failed to adequately inform the appellant of the charge against her;

2. The trial court erred in overruling objections to the purported waiver and statement; and

3. The trial court erred in overruling appellant’s motion for a directed verdict.

Appellant was indicted and convicted under Mississippi Code Annotated section 97-21-7 (1972), which reads as follows:

If any officer authorized to take the proof or acknowledgment of any conveyance of real or personal estate, or of any other instrument which by law may be recorded, shall wilfully and falsely certify that any such conveyance or instrument was acknowledged by any party thereto, when in truth such acknowledgment was not made, or that any such instrument or conveyance was proved, when in truth such proof was not made, he shall, upon conviction, be guilty of forgery.

The above section is included in the chapter setting out all crimes of “forgery and counterfeiting.” 'The penalty statute for sentencing persons convicted of any of the forgery statutes is set out in Code section 97-21-33, as follows:

Persons convicted of forgery shall be punished by imprisonment in the penitentiary for a term of not less than two (2) years nor more than fifteen (15) years, provided, however, that when the amount of value involved is less than one hundred dollars ($100.00) in lieu of the punishment above provided for, the person convicted may be punished by imprisonment in the county jail for a term of not more than twelve (12) months, within the discretion of the court.

At the time of the incident the result of which appellant was indicted, tried and convicted, she was a notary public working in the office of an insurance company. The evidence reveals that on or about September 21, 1976, appellant, as a notary, affixed her signature and seal to a warranty deed purportedly signed by twelve grantors. There were twelve separate acknowledgments. All of them were dated September *136821, 1976. The deed purported to convey certain land in the Second Judicial District of Jones County, Mississippi. Sometime later, one of the purported grantors in the deed ascertained that timber was being cut off the land described in the deed and his investigation revealed that the deed in question was a forgery. A number of the purported grantors were deceased and one was an invalid living out of state.

On December 14,1976, appellant was contacted by the Laurel Police Department and requested to confer with the chief of detectives about the matter. She called an attorney and was advised that if she was not implicated she should cooperate with the authorities. She went to the police department and before she was questioned the testimony reveals that she was advised of her rights and signed a form waiver. She stated at that time that the alleged grantors in the deed appeared before her in “one’s, two’s and three’s.”

The next day, December 15, appellant was arrested and before interrogating her the law enforcement officers testified that she was again advised of her rights. She then gave an oral statement changing her statement given the day before and stated that one man brought the deed to her and that she completed all acknowledgments at the same time, and that the alleged grantors did not appear before her.

We have studied carefully the record and the briefs and can find no reversible error therein. Assignments of error 1 and 3 may be discussed together. Appellant contends that the indictment was defective as it did not identify the “party defrauded.” A reading of the indictment clearly shows that it closely follows the wording of the statute. In addition to this, the indictment specifically made the deed in question a part of the indictment and a copy was attached thereto. It is obvious that the persons defrauded were those whose signatures were attached to the instrument.

Under assignment No. 2 appellant contends that she was coerced into changing her statement on December 15, 1976. She alleges that the reason for this was the chief of detectives threatening to put her in a jail cell. A pretrial hearing was held by the lower court on the objection to the second statement given by appellant. It suffices to say that the evidence presented clearly was sufficient for the lower court to rule that there was no coercion or duress and that appellant freely and voluntarily gave the statement.

The part of the cause that gives this Court greater concern is the sentence of one year in the county jail. As hereinbefore stated, there are several statutes on “forgery.” Some of them require a “criminal intent” and some do not. This is reflected by Code section 97-21-27, which reads in part that “Whenever, by any of the provisions of this chapter, an intent to defraud is required to constitute a forgery,” etc. The statute under which appellant was convicted merely requires that a person charged under the statute “wilfully and falsely” performed the prohibited act. The sentence statute is the same whether or not there was an intent to defraud or a criminal intent.

We observe, however, that the sentence imposed was within the limitations of the statute, permitting discretion to the trial court, in the initial sentence, but not to this Court on appeal. Ellis v. State, 326 So.2d 466 (Miss.1976); Ainsworth v. State, 304 So.2d 656 (Miss.1975). There being no error in the trial nor in the sentence, the cause is affirmed.

This case was considered by a conference of the justices en banc.

AFFIRMED.

SMITH and ROBERTSON, P. JJ., and SUGG, BROOM and LEE, JJ., concur.

BOWLING and COFER, JJ., dissent.

WALKER and COFER, JJ., dissent by separate opinion.

*1369WALKER, Justice,

dissenting:

I must respectfully dissent from the holding of the majority. I cannot in good conscience lend validity to this statute, Mississippi Code Annotated section 97-21-33 (1972), which carries with it such a harsh penalty — up to fifteen years in the penitentiary — in the absence of proof that someone was defrauded or that there was some criminal intent to defraud.

COFER, J., joins this dissent.

BOWLING, Justice,

dissenting:

I dissent in part and would remand the case for an additional sentence hearing.

So far as I can ascertain, this is the first case resulting in a conviction under Mississippi Code Annotated section 97-21-7 (1972), although it has been a part of the Code for many years. This conviction and the majority opinion certainly serve to call attention of this section to the many notary publics and other officials authorized to take acknowledgments of persons executing all types of instruments. The opinion should serve as a cautionary measure that the statute should be complied with in all instances of taking acknowledgments.

I have no choice but to agree that the jury had ample evidence to support its finding of guilty under the language of the statute. The part that gives me concern is the sentencing provisions. Unfortunately, this statute is included in the chapter styled “Forgery and Counterfeiting,” which includes statutes pertaining to all types of forgery. The chapter concludes with one sentencing statute, including that pertaining to the statute in question. Practically all of the forgery statutes require a criminal intent. Section 97-21-7, under which appellant was convicted, merely requires that the act was done “wilfully and falsely.”

The record does not show that a presen-tence investigation and hearing were conducted prior to the imposition of appellant’s sentence. Without criminal intent, the sentence appears to be harsh. I hasten to say that this Court should not unduly interfere with the sentencing procedure of the lower court. The learned circuit judge was in a much better position to evaluate the required sentence than this Court. After reading the whole record, it probably does not contain the complete picture of the sentencing procedure and results. For instance, it in no way (and properly so) reflects what incidents or charges resulted to other persons who obviously were involved in this entire matter. We do not single out any person, but for the purpose of example, the record shows that the matter was started by a finance company in checking a title for a prospective purchaser of the land described in the forged deed; a description of the perpetrator of the deed was available; the person or firm cutting the timber off the land under the provisions of the forged deed, and other facts which show a strong probability that one or more other persons were more involved in this matter than appellant.

For these reasons and in order to insure the application of justice, I am of the opinion that the cause should be affirmed as to conviction and remanded for an investigatory sentence hearing, after which the lower court should reconsider the imposition of sentence. I do not mean to state that after this additional sentence hearing this sentence should be reduced. I have sufficient confidence in the trial judge to leave this to his discretion. Of course, I further realize that under the present sentence and under the majority opinion, due to the fact that the sentence was for a term in the county jail, the lower court, if subsequent developments warrant, could take care of any improper sentence by suspension, etc.

As stated at the outset, for the purpose of insuring justice, I would affirm the cause and remand it to the lower court for a further sentence hearing.

COFER, J., joins in this dissent.