APPEAL from the Circuit Court of Jackson County; the Hon.
EVERETT PROSSER, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
A jury found defendant, John Kent, guilty of forgery. The court sentenced him to three to nine years in the penitentiary, the term to run concurrently with the sentence which he was serving on parole at the time of this offense. Defendant appeals presenting the following issues for review: (1) whether the State proved that the document delivered was apparently capable of defrauding another; (2) whether the court erred in instructing the jury; (3) whether the proof was fatally at variance with the charge; and (4) whether the State negated beyond a reasonable doubt the reasonable probability that someone other than defendant delivered the check in question.
Defendant was charged by information with having committed a forgery on October 9, 1974, at the National Food Store in Carbondale. Following a preliminary hearing, defendant was indicted as follows:
"John Kent committed the offense of forgery in that he did, with the intent to defraud, knowingly deliver to Beverly Trammel, an employee of National Food Store, Carbondale, Illinois, a document apparently capable of defrauding another in that it purported to have been made by another, said document being a check number 195 drawn on the First National Bank and Trust Company, Carbondale, Illinois, in the amount of $116.50 made payable to National and signed as maker Richard S. Westerman, knowing that the signature was not that of Richard S. Westerman."
At trial Beverly Ann Trammel, an employee of the food store on the day in question, testified that defendant appeared at the window in the office area where she was working and gave her a checkbook and check cashing card in the name of Richard S. Westerman. She wrote the check cashing card number on the check, compared the number with the store's card file, stamped the check with a regiscope number, took a picture of defendant and the check with the regiscope machine, and returned the instrument and check cashing card to the accused. Ms. Trammel could not recall seeing a date or signature on the instrument when it was presented to her, but thought it "was probably * * * just a blank check" imprinted with Richard Westerman's name. She stated that she never saw defendant sign the check, go to the register with it, or carry any groceries out of the store. She thought, however, that the check was cashed at register No. 2 in the store. People's Exhibit No. 1, the cancelled check in question, appears to bear the cash register amount of $116.50 and identifying numbers of the register on the back of the instrument. Ms. Trammel further testified that as a matter of customary business practice, only merchandise is given in exchange for checks. She identified People's Exhibit No. 1 as the same check after it had been dated, signed, cashed for $116.50, and returned unpaid by the bank.
Richard Westerman, a student, testified that prior to the incident in question, he had lost his checkbook and had signed an affidavit at the bank concerning the missing check. In October 1974, National called him about a check that had not cleared. He went to the store and identified check No. 195, dated October 9, with his name printed on it. The signature on the check was not his. Westerman related that although he had met defendant, he had never given him permission to use his checks or name.
The State's next witness, Police Detective Michael Maurizio, testified that he investigated this case after receiving the check and regiscope picture on November 5, 1974, from Mrs. Gaylen Johnson, cashier for the National Food Store. Maurizio recognized defendant from the regiscope photograph. The detective had been looking into the misuse of Westerman's checks for some weeks and was aware that prior to defendant's trial a man named John Fromm had been convicted for having forged check No. 197, also on October 9, 1974, at the Village Inn Pizza Parlor. In October 1974, Fromm, 5'9"-5'10" tall and 140 to 150 pounds, had long brown hair, a heavy brown moustache, and a full beard. At the time of the incident in question defendant was clean-shaven.
At the close of the State's evidence and again at the close of all the evidence defendant's motions for a directed verdict were denied. Defendant presented no witnesses.
Defendant initially contends that the State failed to prove that the document delivered was apparently capable of defrauding another and thus did not prove him guilty of forgery beyond a reasonable doubt. This argument is based on the fact, as shown by the evidence, that when defendant presented the check to Ms. Trammel it was entirely blank. Defendant cites People v. Holloman, 30 Ill. App.3d 822, 333 N.E.2d 509.
"(a) A person commits forgery when, with intent to defraud, he knowingly:
(1) Makes or alters any document apparently capable of defrauding another in such a manner that it purports to have been made by another * * * or by authority of one who did not give such authority; or
(2) Issues or delivers such document knowing it to have been thus made or altered; or
(3) Possesses, with the intent to issue or deliver, any such document knowing it to have been thus made or altered.
(b) An intent to defraud means an intention to cause another to assume, create, transfer, alter or terminate any right, obligation or power with reference to any person or property.
(c) A document apparently capable of defrauding another includes, but is not limited to, one by which any right, obligation or power with reference to any person or property may be created, transferred, altered or terminated." Ill. Rev. Stat. 1973, ch. 38, par. 17-3(a), (b), (c).
The check, introduced into evidence as People's Exhibit No. 1, was a completed instrument. It was drawn on the First National Bank and Trust Company, dated "10-9-74," made payable to "National" in the amount of $116.50 and signed "Richard Westerman." It can be inferred from the cash-registered amount and identifying numbers which appear on the back of the instrument and from Ms. Trammel's testimony that the check was indeed cashed at one of the registers in the National Food Store. At the time the check was presented at the cash register the check was not only capable of defrauding but also did actually defraud the food store. The evidence shows that the check was returned unpaid by the drawee bank because Richard Westerman's account had ...