APPEAL from the Circuit Court of Lake County; the Hon. HARRY
D. STROUSE, JR., Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
Defendant, Ronald Virgil Baylor, was indicted on one count of forgery by a grand jury in Lake County. He was found guilty by a jury on March 27, 1972, and subsequently sentenced to 5 years' probation. Defendant appeals on the grounds that he was not proven guilty beyond a reasonable doubt, that the trial court committed reversible error in not instructing the jury on the offense of deceptive practices (which offense is argued by defendant to be a lesser included offense of forgery), and that the trial court committed reversible error in not instructing the jury upon the nature of circumstantial evidence.
On December 6, 1971, defendant went into Mama Mia's Restaurant in Park City, Illinois, to cash a payroll check. A waitress told the defendant that the restaurant did not have enough money to cash the check, so defendant asked two friends waiting outside to join him in eating there so that the restaurant would have sufficient money to cash the check. Defendant and his two friends each ordered steak and eggs. The defendant endorsed the check and gave it to the waitress in payment of the bill. The defendant furnished identification, and the waitress wrote his selective service number on the back of the check. After cashing the check, defendant and his friends left, leaving the food untouched.
Just after defendant left, a police officer came in, and the waitress gave him the check. At trial, an examiner of questioned documents could not identify the defendant's handwriting as being the same as the handwriting on the front of the check, but could identify it as the same as the handwriting of the endorsement.
Thomas M. Gannon, a Catholic priest and Provincer for the Chicago Province of the Society of Jesus, identified the check as one of the official checks of the Province. He stated that the signature on the front of the check purporting to be his was not his and not a signature authorized by him. He testified that the defendant had been an employee of the Province from October 15 to November 10 of 1971. Gannon paid the defendant three times, never by check. Gannon was only one of several people who directed defendant in his duties while working for the Province.
William J. Schmidt, another priest and secretary-treasurer of the Province since 1968, identified the check as an official Province check. He testified that he and four other priests, none of whom was Gannon, had authority to write checks on the account from which this check was drawn. The Province accounts, upon which this check was drawn, was only a convenience account, and the Province had a payroll account with another bank. Schmidt paid defendant three times, the last being November 10, 1971, each time in cash.
The issues on appeal are:
I. Was defendant proven guilty of forgery beyond a reasonable doubt?
II. Did the trial court err in finding that deceptive practice was not a lesser included offense to forgery and by not instructing the jury on the offense of deceptive practice?
III. Did the trial court err in not instructing the jury upon the nature of circumstantial evidence?
Insofar as is relevant here, forgery is defined in section 17-3(a)(2) of the Criminal Code. (Ill. Rev. Stat. 1973, ch. 38, par. 17-3(a)(2)). Defendant's assignment of error is based on the contention that one element of the offense of forgery, knowledge that the check was not authentic, was not proven beyond a reasonable doubt. Such knowledge must clearly be proven in order for defendant to be convicted of forgery. People v. Cohen, 343 Ill. 437.
• 1 There is no dispute here that this check was forged. The question is whether or not the defendant knew that this was a forged check when he cashed it at the restaurant. "[I]t is the duty of this court to resolve all facts and circumstances in evidence on the theory of innocence rather than guilt if that reasonably can be done." (People v. Connie, 52 Ill. App.2d 221, 227-28. See also People v. Dougard, 16 Ill.2d 603.) However, the evidence here does not point to a reasonable theory of defendant's innocence. The defendant had worked for the purported drawer of this check prior to its date. He had always been paid in cash, never having gotten a check from his employer. Defendant had not worked for the purported drawer of this check for 4 weeks prior to its date. He called two friends into the restaurant to purchase meals along with himself so that the restaurant would have enough money to cash the check and as soon as the check was cashed all three of them left, leaving their meals untouched. The theory of defendant's innocence under the circumstances here has to be that he somehow came into possession of this check not knowing it to be a false instrument, though he had never received a check from the purported drawer and had ceased working for the purported drawer 4 weeks earlier, and then endorsed it over in good faith. This is not a reasonable theory of innocence.
People v. Cohen, 343 Ill. 437, where the court remanded for a new trial, is cited by the defendant as being factually analogous to the case at hand. In each case the person who cashed the check made payable to him presented authentic identification while cashing the check in person and, while at liberty, made no attempt to flee. However, there the similarity ends insofar as is relevant here. In Cohen, the defendant gave a logical reason for having the check. He said it was in payment for goods delivered and produced a witness who testified that the defendant told him that he dealt in such goods. Also, the drawer in that case was a "Homer Bros," and though Louis Homer testified that he alone was authorized to make such a signature, defendant testified that he got such a signature on the check from George Homer. In Cohen, the court said at page 442: "There is no evidence in this case that the George Homer mentioned by plaintiff in error in his testimony was not one of the Homer brothers whose name was used in the title of the ...