State v. Linam , 90 N.M. 729 ( 1977 )

OPINION

HENDLEY, Judge.

Convicted of one count of forgery by falsely making a check and one count of forgery by issuing or transferring a forged writing, all being contrary to § 40A-16-9(A) and (B), N.M.S.A.1953 (2d Repl. Vol. 6, 1972) defendant appeals asserting: (1) that the evidence only showed an attempt to issue or transfer a forged writing; (2) the trial court erred in not giving a requested instruction on intoxication; and (3) the trial court erred in not granting a continuance.

Attempt

This issue is raised for the first time on appeal. Since it involves a question of failure of proof it is jurisdictional and may be raised for the first time on appeal. State v. Losolla, 84 N.M. 151, 500 P.2d 436 (Ct.App.1972).

Defendant, in the company of another, presented the check to a bank teller for cashing. The payee on the check was the same name as on defendant’s driver’s license. The teller was somewhat suspicious and took the check to her supervisor. The supervisor checked the signature card of the purported payor. The purported payor’s signature on the check did not appear to be the same as the one on the signature card. The police were called and defendant was arrested.

Relying on State v. Tooke, 81 N.M. 618, 471 P.2d 188 (Ct.App.1970) defendant contends that since he received nothing for the check he is “. . guilty of at most an attempted forgery, because there was no passing of an interest in the check.” We disagree.

In State v. Tooke, supra, there was no transfer of rights in the check. More was to be done before the checkout clerk would accept the check. The check had to be approved by an “okayer.” That was a physical transfer but not a transfer of any interest. It was a requirement of the store prior to permitting any transfer of interest. There was no expectation that the “okayer” would cash the check. No interest was intended to pass. It was nothing more than preparation.

The facts in the instant case show a complete transfer to the bank teller. The fact that the teller went to her supervisor after the transfer does not convert the crime into an attempt. The transfer of interest by the defendant had already occurred. The fact that defendant received nothing or that there was no injury or loss is immaterial. Compare State v. Weber, 76 N.M. 636, 417 P.2d 444 (1966).

Instruction

Defendant’s requested instruction on intoxication was refused by the trial court. Defendant contends that there was evidence reasonably tending to sustain the giving of the required instruction. We disagree. The fact that liquor was smelled on defendant’s breath or that the odor of liquor was coming from the area where defendant and his companion were standing will not support an instruction on intoxication. We cannot equate the odor of liquor, without more, with intoxication. See State v. Watkins, 88 N.M. 561, 543 P.2d 1189 (Ct.App.1975).

Continuance

Defendant notified the state in advance of trial that he was relying on the defense of lack of specific intent because of intoxication. A Court Clinic report was ordered by the trial court. Defendant moved for a one week continuance two days . before trial because a Court Clinic report had not been received. The day of trial defendant was handed the report. The report concluded that defendant was able to form a specific intent at the time of the offense.

Defendant contends that his requested continuance should have been granted. This contention appears to be based on the fact that the report from the Court Clinic was not made by a qualified expert. • The record does not support this contention nor did the state stipulate to that fact.

The trial court did not abuse its discretion in denying the motion for a continuance. State v. Blea, 88 N.M. 538, 543 P.2d 831 (Ct.App.1975).

Affirmed.

IT IS SO ORDERED.

WOOD, C. J., concurs. SUTIN, J., specially concurs.