DocketNumber: Record No. 0547-90-2
Citation Numbers: 409 S.E.2d 818, 13 Va. App. 194
Judges: Joseph E. Baker
Filed Date: 9/24/1991
Status: Precedential
Modified Date: 10/19/2024
Opinion
Abdullah Imam Muhammad (appellant) appeals from his bench trial convictions by the Circuit Court of Henrico County (trial court) for (1) forgery of a check and (2) uttering that forged check. The issue presented by this appeal is whether the evidence is sufficient to support the convictions.
On September 21, 1989, appellant presented a check to a grocery store clerk in payment for groceries he had selected, intending that any balance above the cost of the purchased items be delivered to him in cash. The check, in blank form, had been stolen from Interstate Pallet Co., Inc. (Interstate). The company’s name and address were imprinted at the top left corner.
An employee of Interstate identified the check as one which had been stolen from the company. He stated that this type of check was used for petty cash purposes, never for payroll and that appellant had never been employed by Interstate and did not have au
Appellant presented no evidence on his behalf. In support of his motion to strike, his counsel made the following argument to the trial court:
The basis for my motion to strike on the forgery would be that this isn’t an instrument which has been forged, because it does not have legal efficacy. With regard to the uttering, that has to be based on an instrument which was forged.
Virginia defines forgery as “the fraudulent making of a false writing, which, if genuine, would be apparently of legal efficacy.” Terry v. Commonwealth, 87 Va. 672, 674, 13 S.E. 104, 105 (1891); Gordon v. Commonwealth, 100 Va. 825, 829, 41 S.E. 746, 748 (1902).
[F]orgery is the false making or material alteration, with the intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy. It makes no difference how the writing may be made, whether by handwriting, printing, steel engraving, lithographing, rubber stamp, or what not. It simply is the making of a writing with intent to defraud, and which writing, if it were genuine, might apparently be of legal efficacy.
Hanbury v. Commonwealth, 203 Va. 182, 187, 122 S.E.2d 911, 914 (1961).
Appellant argues that because no signature of a drawer appeared on the check, the check did not meet “the legal efficacy” test. We disagree.
“[A]n instrument is one of legal efficacy, within the rules relating to forgery, where by any possibility it may operate to the injury of another.” Gordon, 100 Va. at 829, 41 S.E. at 748. The fact that a document may be so irregular that a bank would be justified in refusing payment, or that a transferee would be justified in not accepting the instrument, does not mean that the writing lacks apparent legal efficacy. Id. at 828, 41 S.E. at 747. A check which has been fraudulently written or altered in a manner that possibly will operate to the injury of another constitutes a forgery.
Instruments may be subject to forgery, even though other steps would have to be taken before they would be perfected, as where, in order to complete their legal effectiveness, they need an endorsement. 36 Am. Jur. 2d Forgery § 25 (1968); see Wyatt v. State, 257 Ala. 90, 57 So. 2d 366 (1952); Norton v. State, 129 Wis. 659, 109 N.W. 531 (1906); Santolini v. State, 6 Wyo. 110, 42 P. 746 (1895).
Our research reveals no Virginia case precisely on point. However, Gordon holds that the writing or alteration does not have to relate to the making or negotiation of the check. In fact, the alteration of the instrument in Gordon occurred after the instrument had been legitimately negotiated and paid and canceled by the bank. The drawer wrote on the face of the check after it was returned to him “in full account to date.” Although the notation had no bearing upon the legal efficacy of the check as a negotiable instrument, the notation had apparent legal efficacy as a receipt which could be used to defraud the payee on the account.
Cases from other states support our holding. In Mayes v. State, 264 Ark. 283, 571 S.W.2d 420 (1978), the Court, construing Arkansas statutes not identical to those in Virginia, stated that a check, otherwise complete, which did not have either a handwritten or facsimile signature under the printed name of the drawer, met the legal efficacy test. Consistent with Gordon, the Arkansas Court held that it is not necessary that the forged writing “create a valid and legally enforceable obligation in order to constitute the making of it a forgery . ... It is sufficient that it might possibly deceive another and was prepared with intent to deceive and defraud another.” Id. at 295, 571 S.W.2d at 427 (quoting In Re Parker, 57 Cal. App. 2d 388, 134 P.2d 302 (1943)) (emphasis added).
In State v. Morse, 38 Wash. 2d 927, 234 P.2d 478 (1951), the defendant alleged that he could not be convicted of forgery because the instrument he presented for payment lacked “the personal signature of any drawer.” The defendant argued that because the instrument had no signature of a drawer “the check has no legal efficacy.” In Morse, the name “Hillyard Motors” was printed on the check and appeared to be the drawer. The Court held that the check had legal efficacy within the meaning of the forgery statute. Id. at 930, 234 P.2d at 480.
No definition of forgery can be comprehensive enough to include all the crimes that may be committed by simple use of pen, paper and ink. See People v. Kubanek, 370 Ill. 646, 19 N.E.2d 573 (1939); People v. Abeel, 182 N.Y. 415, 75 N.E. 307 (1905). One authority has stated that a false instrument, to be forgery,
In the instant case, there can be no doubt that appellant intended to defraud the grocer. When he presented the instrument to the clerk to obtain merchandise and cash in exchange for the check, his endorsement of the check represented to the grocer that the check had legal efficacy. We do not construe the previously decided Virginia cases so narrowly as to require us to hold as a matter of law that there was no possibility that the check would be accepted and paid by the bank upon which it appeared to be drawn. On the contrary, we hold that a form company check bearing its name and address clearly printed on the face thereof, appearing to be payable in payment of a “payroll” debt, duly endorsed by the named payee and presented for payment, clearly has apparent legal efficacy.
The purpose of the statute against forgery is to protect society against the fabrication, falsification and the uttering of instruments which might be acted upon as being genuine. The law should protect, in this respect, the members of the community who may be ignorant or gullible as well as those who are cautious and aware of the legal requirements of a genuine instrument. An instrument is not the subject matter of forgery only where it is so defective on its face that, as a matter of law, it is not capable of defrauding anyone. The instrument which was uttered by defendant in this case might on its face have easily defrauded someone. In fact, it would have been legally enforceable in its incomplete state if, as it represented, there was in fact an underlying debt.
Mayes, 264 Ark. at 294, 571 S.W.2d at 427.
We agree that the purpose of the Virginia statute likewise is to protect society against fabrication and falsification of writings “by simple use of pen, paper and ink,” and for the reasons stated af
Affirmed.
Coleman, J., concurred.
The company name on the check and the purported reason for which the check was being issued appeared as “INTERSTATE PALLET CO., INC.” and “PAYROLL,” respectively.