People v. Susalla , 392 Mich. 387 ( 1974 )

392 Mich. 387 (1974) 220 N.W.2d 405

PEOPLE
v.
SUSALLA

No. 17 June Term 1974, Docket No. 55,023.

Supreme Court of Michigan.

Decided August 2, 1974.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Thaddeus F. Hamera, Chief Appellate Lawyer, and Stephen F. Osinski, Assistant Prosecuting Attorney, for the people.

Federlein, Grylls & McNelis, P.C., for defendant on appeal.

WILLIAMS, J.

We are confronted by only one issue in this case: whether an individual who signs his or her own name to a company check, without authority to do so, is guilty of forgery. The trial court answered affirmatively; the Court of Appeals said no. We agree with the trial court. We therefore reaffirm the definition of forgery we used in In re Stout, 371 Mich. 438; 124 NW2d 277 (1963), reverse the Court of Appeals and affirm the trial court.

I. FACTS

On November 7, 1970, defendant Eugene Martin Susalla purchased a red hunting suit and boots, paying for them with a business check of the M & J Uniform Shoppe. Defendant had no connection with the company and, in fact, the Shoppe had been out of business three or four years. The check had no designation by what authority the drawer signed the instrument, but the signature line was immediately below the company name imprinted on the check.

Defendant signed his own name to the check and wrote his driver's license number on the back. Although he did not affirmatively represent himself as an owner or other officer of the company, defendant, in responding to the store manager's question, said that business was not bad. The manager also testified he treated the check as if it were an ordinary business check. The check was returned, marked account closed.

After a full jury trial commencing September 21, 1971, defendant was found guilty of violation of MCLA 750.248; MSA 28.445, forgery,^[1] and MCLA 750.249; MSA 28.446, uttering and publishing a forged instrument.^[2]

He received concurrent sentences of 7-14 years on both counts. Motion for new trial was denied. The Court of Appeals reversed unanimously, holding that although this "resourceful fellow" might be guilty of a whole panoply of crimes, "one simply can't ``forge' his own name". People v Susalla, 46 Mich. App. 473, 476; 208 NW2d 221 (1973). Since the forgery conviction was overturned, the uttering and publishing conviction also fell. We granted leave on September 27, 1973. 390 Mich. 779 (1973).

II. In re Stout CONTROLLING.

In our opinion this case is controlled by In re Stout, 371 Mich. 438; 124 NW2d 277 (1963). Petitioner Stout brought habeas corpus to contest his commitment as incompetent to stand trial for a felony. He had been charged with the felony of forgery and he claimed that his signing his own name as a company representative on the back of a draft without authority to do so was not a forgery and therefore not a felony. These facts are substantially similar to the instant case.

This Court in Stout, relying on People v Marion, 29 Mich. 31, 35 (1874) found forgery includes "any act which fraudulently makes an instrument ``purport to be what it is not.'" 371 Mich. 438, 441, and that therefore Stout was properly charged with a felony. We reaffirm that definition.

III. DEFENDANT'S CASES DISTINGUISHED.

Defendant would have us instead rely on the dissent in Stout and on Gilbert v United States, 370 U.S. 650; 82 S. Ct. 1399; 8 L. Ed. 2d 750 (1962) on which that dissent relied. Justice Harlan, writing for the 4-3 majority, applied the common law meaning to the Federal statute on the basis there was no legislative interpretation. The common-law interpretation did not include misrepresentation of agency. We believe that the Michigan statute unlike the Federal statute does not require resort to the common law for interpretation and hence prefer to follow Stout and not Gilbert.^[3]

Defendant also relies on People v Brown, 178 Mich. 155; 144 N.W. 477 (1913). The facts in this case are altogether different. Defendant made out a personal check to himself and signed it, using an Anglican name he commonly went by rather than his own long foreign name. It was accepted by a friend of many years who knew and recognized him and who also knew his right name and that he commonly used the name he employed on the check. There were, of course, no funds in his account at the bank.

IV. OTHER STATES.

Decisions in our sister states differ.^[4] We therefore find both these, and Gilbert, inadequate as precedent. Additionally, because we are dealing with a matter involving construction of our own statute, we are not required to find safe passage through such a morass to come up with what our own Legislature intended.

V. TEXTS.

Most writers and commentators agree that forgery is "the false making or material alteration, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability." 2 Wharton's Criminal Law & Procedure, § 621, p 396.^[5] The hornbook most commonly used in Michigan practice notes that,

"In order to constitute forgery there must be a making of a false instrument for the purpose of creating another's liability, with fraudulent intent to injure him. Such a forged instrument may be made in various ways, as by creating it entirely, by adding to or taking away from it some of its essential terms, or by procuring the signature of a person who had no intention of signing it."

3 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1485, p 1867.

Therefore, it is clear that forgery includes any act which fraudulently makes an instrument appear to be what it is not. Nowhere is there a requirement that a signature is necessary, much less a fictitious one, before we can call something a forgery. For example, Professor Perkins, in his treatise, specifically explains that forgery may be committed, for example, by one using his or her own name, by false dating, or using one's name as that of another. Perkins, Criminal Law, (2d ed), p 347.

VI. CONCLUSION.

The key appears to be that the writing itself is a lie. In the instant case, defendant created a business check by signing his name. The check would not have been negotiable without a signature, therefore, the signing was itself the act which made the false instrument. He had no authority to do so, therefore he acted with fraudulent intent. This is precisely the kind of false making punishable by our forgery statute. Had this been a personal check drawn on a bank in which he had no account, of course, defendant's signing his own name might have made him suspectible to other charges, but not forgery, because we have other statutes more precisely fitting that offense.^[6] Moreover, there is missing from that offense that misrepresentation of authority which makes the check what it is not. Here, defendant falsely made and uttered a business check without apparent authority. This is more than a mere misrepresentation of agency. It is forgery.

In the presence of a statute defining a criminal offense, we will not look to the common-law meaning, as long as the statute's intent is clear. The offense of forgery is complete when a person falsely makes any writings enumberated in the statute, with intent to deceive, in a manner which exposes another to loss. This includes the signing of one's own name to a business check, without authority to do so.

No error being found, the conviction is affirmed. The Court of Appeals is reversed and the trial court affirmed.

T.M. KAVANAGH, C.J., and T.G. KAVANAGH, LEVIN, and M.S. COLEMAN, JJ., concurred with WILLIAMS, J.

SWAINSON, J., concurred in the result.

J.W. FITZGERALD, J., did not sit in this case.

NOTES

[1] "Sec. 248. (1) Any person who shall falsely make, alter, forge or counterfeit any public record, or any certificate, return or attestation of any clerk of a court, public register, notary public, justice of the peace, township clerk, or any other public officer, in relation to any matter wherein such certificate, return or attestation may be received as legal proof, or any charter, deed, will, testament, bond or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange, promissory note, or any order, acquittance of discharge for money or other property, or any waiver, release, claim or demand, or any acceptance of a bill of exchange, or indorsement, or assignment of a bill of exchange or promissory note for the payment of money, or any accountable receipt for money, goods or other property, with intent to injure or defraud any person, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 14 years."

[2] "Sec. 249. Uttering and publishing forged instruments — Any person who shall utter and publish as true, any false, forged, altered or counterfeit record, deed, instrument or other writing mentioned in the preceding section, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud as aforesaid, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 14 years."

[3] Incidentally, in a prestatutory case where the facts were similar to the instant case, this Court reached a result similar to Gilbert's. Bank of Detroit v Standard Accident Insurance Co., 245 Mich. 14; 222 N.W. 134 (1928).

[4] See, e.g., In re Clemons v Alvis. 168 Ohio St 83; 151 N.E. 553; 5 Ohio Ops 349 (1958) for one extreme, where signing one's own name to a personal check drawn on a bank where defendant had no checking account was forgery. For a survey of the positions of several states, Tiarks v First National Bank of Mobile, 182 So 2d 366 (Sup Ct Ala, 1966).

[5] "Forgery at the common law is the fraudulent making or alteration of a writing to the prejudice of another's right." P.F. Herrick, 3 Underhill's Criminal Evidence, (5th ed), § 770, p 1769.

[6] E.g., MCLA 750.131a; MSA 28.326(1), drawing checks upon bank without any bank account.

"Sec. 131a. Any person who with intention to defraud shall make or draw or utter any check, draft or order for the payment of money to apply on an account or otherwise upon any bank or other depository who at the time of making, drawing, uttering or delivering such check, draft or order has no account in or credit with such bank or other depository for the payment of such check, draft or order upon presentation shall be guilty of a felony punishable by imprisonment in the state prison for not more than 2 years or by a fine of not more than $500. * * *"