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WILLIAM DONALD v. STATE OF MISSISSIPPI

JUNE 05, 1985

WILLIAM DONALD
v.
STATE OF MISSISSIPPI



EN BANC

SULLIVAN, JUSTICE, FOR THE COURT:

This is an appeal from a criminal conviction in the Circuit Court of Neshoba County, Mississippi. WILLIAM DONALD was convicted of uttering a forged check and sentenced to serve ten years in the custody of the Mississippi Department of Corrections.

Donald appeals, assigning as error:

 I. Evidence of other crimes, to-wit: other utterings of forgeries, allegedly committed by the appellant, were erroneously admitted into evidence at trial; and

 II. The verdict was against the overwhelming weight of the evidence.

 On June 6, 1983, Donald allegedly drove to the Peoples Bank of Mississippi, Valley View Branch, in Philadelphia, Mississippi, drive-up window, and presented a check to the teller, Linda Cutrer. The check was made out to" Cash "in the amount of $150. The check was personalized in the name of James B. Brewer, and a signature purporting to be that of James B. Brewer was signed on the check. Mrs. Cutrer called for approval on the check since she did not know Brewer personally, and gave appellant $150 cash.

 Besides this occurrence, for which the appellant was indicted, the state also elicited from Cutrer that the appellant had cashed several other forged checks prior to and subsequent to the occurrence for which the appellant was indicted. The teller stated that appellant drove up on each of these occasions in the same blue car and presented a check signed" James B. Brewer "in the same way as he had done with the check on June 6. The identification of appellant as the person who presented these other forged instruments was objected to by defense counsel. The objection was overruled.

 A second teller, Mary Eakes, testified that she also saw William Donald doing business at the drive-up window with Linda Cutrer on several occasions during the months of May and June, 1983. She also stated that on one occasion Donald presented her with a check inside the branch bank, made out to" Cash "in the amount of $30, purportedly signed by James B. Brewer.

 In his defense, appellant presented one alibi witness, who testified that appellant was working with him the entire day of June 6, 1983, in Attala County, roughly 25 to 30 miles from Philadelphia. This witness testified that Donald did not leave the job site at any time during the day. He also testified that Donald rode to work with him that day, and that he had never seen him driving any vehicle of his own.

 I.

 DID THE TRIAL COURT ERR IN ALLOWING PROSECUTING WITNESSES TO TESTIFY ABOUT OTHER FORGERIES FOR WHICH THE APPELLANT WAS NOT CHARGED?

 Yes. The well settled rule in Mississippi is that proof of a crime distinct from that alleged in an indictment is not admissible against an accused. Mason v. State, 429 So.2d 569 (Miss. 1983); Tucker v. State, 403 So.2d 1274 (Miss. 1981); Allison v. State, 274 So.2d 678 (Miss. 1973); Tobias v. State, No. 54,708, decided June 5, 1985, not yet reported. Our cases do recognize certain limited exceptions to this rule. Crafton v. State, 200 Miss. 10, 26 So.2d 347, 348 (1946); Hicks v. State, 441 So.2d 1359, 1360 (Miss. 1983); Pierce v. State, 213 So.2d 769 (Miss. 1968).

 The state asserts that the admission of other crimes evidence in this case fits within the exceptions

 to the rule that other crimes evidence is inadmissible. The state quotes from Gray v. State, 351 So.2d 1342 (Miss. ...


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