¶1Dissenting Opinion
¶2I dissent from the majority opinion on the grounds that the State has failed to adequately prove all the necessary elements of the crime involved.
¶3The statute and affidavit here requires three elements for the offense of uttering a forged check with intent to defraud: (1) uttering a forged instrument (2) with intent to defraud (3) knowing the same to be false. The evidence presented at trial through the president of Hoffman Corporation and the vice-president of Peoples’ Bank and Trust Company clearly established that the check appellant sought to cash on the day of the incident was forged. There is no evidence, however, which would allow us to draw the inference that the appellant knew the instrument was forged or that he intended to defraud the 7-11 market.
¶4Testimony at trial indicated that appellant presented the check to the manager and, when asked for identification, presented a birth certificate with the name Alex Williams on it. The appellant testified that he told the manager that it was not his check when he presented it to him and the manager *153supported this in his own testimony. After the presentment of the check, the birth certificate and the admission by appellant that he was not the named payee the manager understandably expressed reluctance to cash the check. Appellant then told the manager the story of the television sale, which clearly establishes appellant’s unfamiliarity with negotiable instruments. It cannot, however, be construed as further evidence of appellant’s attempt to defraud since even if believed it would not alter the negotiability of the check in relation to the manager or appellant’s rights in relation to the instrument.
¶5Appellant waited in the store for approximately five minutes while the manager telephoned the Hoffman Company and a bank where Hoffman kept its account. During this telephoning the manager told appellant that the check had been stolen from Hoffman but appellant still did not leave or attempt to flee from the premises.
¶6There is a total absence of the elements of intent to defraud and knowledge of the forged nature of the instrument in this evidence. Appellant neither endorsed the instrument nor attempted to present himself as the named payee.- There was no misrepresentation as to his identity. On the contrary the testimony is uncontradicted that appellant freely and openly revealed his standing in relation to the instrument.
¶7I also have some doubt as to the construction of appellant’s actions at the arrival of the police as “flight.” The only evidence in the record concerning appellant’s attempting to leave the scene was the testimony of officer Gárgol who stated that his partner collared appellant as appellant was “going out” the door of the store. I do not think this necessarily can be construed as flight, nor do I believe that even if flight were present we could use it to supplant the substantial and probative evidence which is required on each element of the crime charged before a conviction can be sustained.
¶8Note.—Reported in 293 N. E. 2d 25.