S steals a check from v on 4-13. On 4-17, V writes and check and gets an NSF notice from her bank. V looks into her account and sees check not signed by her or her husband. Date on check is 4-25. Check was presented to bank on 4-14.

What date of offense? I say 4-14, date the check was presented to the bank.

Date of offense is the date S forged the check, not the date placed on the check.

I would agree that it's 4-14. But I would also say that's what "on or about" was invented for.

I would use 4/14. If I'm not mistaken, then the "on or about April 14th" would be good on any date from 4/14 back to the statute of limitations.

I agree with JM and Andrea regarding the "on or about" language. Given that effect, I usually charge the latest possible date.

It also depends on the charge. Sounds like the defendant committed Stealing a check or similar sight order (class A misd) under PC 32.24 on 4-13, though I would probably still charge it as on or about 4-14.

Forgery or theft of cash by deception (depending on more facts than the summary gives), I would probably use the 4-14 charging date as well.

Though all of this assumes you have strong evidence of the presentation date (which you probably do if you have the check). Otherwise you could charge it as on or about 4-17 because you know the funds were taken before that because of the NSF notice.

Interesting, a post-dated forged check, if I understand your statement about the "date on the check."

You're right Martin, a post dated forged check to her own company forging the husband's signature. (3rd degree amount on the theft ladder.)

At the risk of sounding silly, on one occasion I had a jury once nearly hang on the "on or about" issue, despite a fairly extensive voir dire on the issue.

So what about just alleging 4 charging paragraphs (not counts), each paragraph alleging a different date, of the same check to cover the dates? I've done the same in judgement and sentence enhancement when I had varying date problems.

The jury wouldn't all have to agree on the same date of offense either.

What about the date the check was passed? Is it possible to charge it that way, if you have proof of the passing?

[This message was edited by GG on 01-26-10 at .]

GG; I don't think it is silly at all. The reason I posted was because of the different dates and our history with on or about dates.

GG; I don't think it is silly at all. The reason I posted was because of the different dates and our history with on or about dates.

Thanks for that input and I do have the check that shows a passed date of 4-14.

To clarify something noted above, the 'on or about' language covers everything from the date of indictment back as far as the statute of limitations goes for that particular offense.

Depending on how you word your indictment, the date of the forgery could mean the date of signing or modification, the passing, or possession w/ intent to pass.

It's not unusual to have cases like this one where the date of the actual offense is unknown with absolute certainty. I just take a stab at getting as close as I can, then I voir dire the jury on what 'on or about' means to make sure they all get the concept. There are many examples to help them understand without getting too close to the facts of the case on trial, e.g. you're on vacation for 2 weeks then come home to find your house burglarized, a body is discovered and the coroner can only guess as to the date of death, sex abuse of small children, etc.

The key is to voir dire on the topic whenever you see a potential question on the exact date. I also include a paragraph in the charge whenever there may be any question of the date.

JohnW, I often agree with you on the forum, but the problem I had was a jury agreeing, after an extensive voir dire on the issue, that they understood the on/about doctrine, but when it came time for the rubber to hit the road, they later said they couldn't understand such a
complicated legal concept.

I gave examples, and yet, they almost hung. Many of my other panels have had no issue with on/about, but the occasional panel will.

Hence my suggestion.

Isn't the point of the indictment to give the defendant sufficient notice of what she supposedly did and when she did it so she can prepare her defense?

Maybe I'm naive to think that if someone is accused of stealing Peter's checkbook and forging checks to pay Paul ... well I wouldn't expect her reply to be "Oh I steal checkbooks and forge checks all the time so you'll need to be more specific."

quote:

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Maybe I'm naive to think that if someone is accused of stealing Peter's checkbook and forging checks to pay Paul ... well I wouldn't expect her reply to be "Oh I steal checkbooks and forge checks all the time so you'll need to be more specific."

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You're definitely naive I've rarely seen a defendant have a *single* count of forgery of a check. It's nearly always multiple checks, multiple merchants, multiple dates- and often, multiple different forgeries. People who write bad checks don't often engage in half-measures.

Alex, I guess I look at it from a different perspective. I keep remembering getting busted admitting to the wrong offense when mom was the judge.