Elements of Forgery
Forgery is the false making or material alteration of a writing, where the writing has the apparent ability to defraud and is of apparent legal efficacy with the intent to defraud. Thus, the elements of forgery are:
- False making – The person must have taken paper and ink and created a false document from scratch. Forgery is limited to documents. “Writing” includes anything handwritten, typewritten, computer-generated, printed, or engraved.
- Material alteration – The person must have taken a genuine document and changed it in some significant way. It is intended to cover situations involving false signatures or improperly filling in blanks on a form.
- Ability to defraud – The document or writing has to look genuine enough to qualify as having the apparent ability to fool most people.
- Legal efficacy – The document or writing has to have some legal significance affecting another person’s right to something. A writing of social significance cannot be the subject of forgery.
- Intent to defraud – The specific state of mind for forgery does not require intent to steal, only intent to fool people. The person must have intended that other people regard something false as genuine. A forgery is complete upon having created such a document with this requisite intent.
The identity of the victim or victims, or proof that the offender intended to defraud a particular person is not an essential element of the offense of forgery, nor is the actual deception of any individual or proof that anyone actually relied on the forged instrument[i]. Proof that a forged document was stolen is not an element of the offense[ii]. Moreover, monetary gain or other misappropriation by the forger, or actual prejudice or injury to any individual need not be proven[iii].
In order to constitute forgery, the accused need not have signed the instrument in person. It is sufficient that s/he caused it to be signed by another, even though the latter is entirely innocent of criminal knowledge or intent[iv]. Thus, a person is guilty of forgery if s/he procures its commission[v]. However, where there is no proof of the forgery, one cannot be convicted of aiding and abetting a forgery[vi]. A forgery may be committed through the use of a typewriter or through the use of a computer[vii]. The fact that the handwriting on the forged instrument is not similar to the handwriting of the person whose instrument the forgery purports to be is immaterial[viii].
Forgery cannot be committed by the genuine making of an instrument for the purpose of defrauding[ix]. It is not forgery where the falsity lies only in the representation of facts and not in the genuineness of execution[x]. Therefore, a false statement of fact in the body of the instrument or a false assertion of authority to write another’s name, by which a person is deceived and defrauded, is not forgery[xi]. In some jurisdictions, the making of a false statement is held to be as much a forgery as is the false making of an instrument.
A person cannot commit forgery by signing his or her own name to an instrument, since the signer is both the actual and ostensible maker of that instrument[xii]. However, although a person signs and executes it in his or her own name, a person may be guilty of making a false instrument, if it is false in any material part and calculated to induce another to give credit to it as genuine and authentic when the instrument is not in fact what it purports to be[xiii]. It does not constitute forgery when a defendant’s signing of a name that is not legally his or her own[xiv]. However, the use of the former name with a fraudulent intent to conceal identity is forgery where the accused has legally changed his or her name[xv].
A person may be guilty of forgery in fraudulently signing his or her own name when it is identical to the name of a person who should have signed, provided that the intent is to have the instrument received as that of the other person and the instrument is of legal efficacy[xvi]. However, if no attempt is made to impersonate the other person or to deceive others into believing that the signer is that person, there is no forgery[xvii]. A forgery may be committed by signing one’s own name to an instrument intended to be received as that of another, although the names are not identical[xviii].
There can be no forgery where authority is given to sign the name of another to writing[xix]. Moreover, where one makes or alters an instrument in good faith, there can be no forgery[xx]. Provided the instrument is made with intent to defraud, the crime of forgery may be committed by the signing of a fictitious or assumed name[xxi]. However, the question of intention to defraud is of vital importance, because a person may rightfully and innocently assume and use a name which is not his or her own[xxii]. A person does not commit forgery if s/he uses a fictitious or assumed name, but does not represent that the name represents anyone other than himself or herself[xxiii]. The use of a fictitious name as an instrument of fraud in the impersonation of the fictional person is as much a forgery as though it were real[xxiv].
A forgery may be committed in a fictitious name as well as in the name of an actual person. Where the name of an actual person is used, it is not essential to the commission of a forgery that the person in whose name the instrument purports to be made has the legal capacity or authority to make it[xxv]. It is sufficient if the document purports or appears to be legally valid[xxvi]. Thus, the signing of the name of a deceased person to an instrument with intent to defraud constitutes the crime of forgery[xxvii]. In such cases, a document is capable of defrauding another if a reasonable and ordinary person might be deceived into accepting the document as being true and genuine[xxviii].
The fraudulent procurement of a genuine signature to an instrument does not constitute forgery, such as where a person obtains another’s signature on an instrument by means of a false and fraudulent representation as to the purpose for which the instrument is to be used[xxix]. However, in some jurisdictions, the procuring of a genuine signature to an instrument by fraudulent representations or omissions constitutes forgery[xxx].
A false entry in one’s own books does not constitute forgery[xxxi]. However, one cannot falsely make or falsely alter his or her own account against another:
- while it is in one’s own book and in one’s own possession, and
- before any settlement or adjustment of the same is made whereby some other person has acquired an interest in, or right to, the same, as evidence or otherwise[xxxii].
It is forgery if an instrument is so altered that it is not the instrument signed by the maker, or if words are added to change the effect of the instrument, and if this is fraudulently and falsely done[xxxiii]. Any change in an instrument that alters its legal effect is a forgery[xxxiv]. There is no forgery where the alteration was made in good faith[xxxv]. In the absence of a statutory provision, completely destroying an instrument by erasing or obliterating its contents with intent to defraud does not constitute forgery[xxxvi]. The altering of a receipt with fraudulent intent constitutes forgery of the receipt[xxxvii]. However, the alteration of the figures in an express receipt to make it appear that a larger amount has been paid for carriage than is actually the case, where the alteration is made by the person sending the package for a third person, does not constitute forgery, although the person making it may be guilty of obtaining money under false pretenses if his or her purpose is to collect from the principal the amount added to that named in the receipt[xxxviii].
If changing the date of a receipt prejudices the rights of another or more easily or successfully enables the party altering the receipt to obtain a greater credit for money paid, thereby making the receipt evidence of a payment at a time different from the original date, it constitutes forgery[xxxix]. Therefore, changing the date of a receipt in full of all demands to date, or inserting in an undated receipt given on the settlement of an account of a date after the actual date of settlement, so as to make it cover items bought after the actual settlement, constitutes forgery[xl]
[i] State v. Thompson, 194 Ariz. 295, 981 P.2d 595 (Ct. App. Div. 1 1999); State v. Raymo, 419 So. 2d 858 (La. 1982); State v. Williams, 134 Ariz. 411, 656 P.2d 1272, 35 U.C.C. Rep. Serv. 920 (Ct. App. Div. 1 1982).
[ii] State v. Mason, 79 Haw. 175, 900 P.2d 172 (Haw. Ct. App. 1995).
[iii] Johnson v. State, 412 So. 2d 822 (Ala. Crim. App. 1981).
[iv] State v. Phares, 120 Kan. 172, 243 P. 266 (1926); Com. v. Zaleski, 3 Mass. App. Ct. 538, 336 N.E.2d 877 (1975).
[v] Boyer v. State, 68 Okla. Crim. 220, 97 P.2d 779 (1939).
[vi] Goucher v. State, 113 Neb. 352, 204 N.W. 967, 41 A.L.R. 227 (1925).
[vii] People v. Risley, 214 N.Y. 75, 108 N.E. 200 (1915); State v. Bradley, 116 Tenn. 711, 94 S.W. 605 (1906). People v. Avila, 770 P.2d 1330 (Colo. Ct. App. 1988).
[viii] Davis v. Com., 217 Ky. 801, 290 S.W. 702 (1927).
[ix] Goucher v. State, 113 Neb. 352, 204 N.W. 967, 41 A.L.R. 227 (1925).
[x] Gilbert v. U.S., 370 U.S. 650, 82 S. Ct. 1399, 8 L. Ed. 2d 750 (1962).
[xi] People v. Adkins, 236 A.D.2d 850, 653 N.Y.S.2d 1007 (4th Dep’t 1997).
[xii] People v. Johnson, 88 A.D.2d 922, 450 N.Y.S.2d 560 (2d Dep’t 1982).
[xiii] U.S. v. Fontana, 948 F.2d 796 (1st Cir. 1991).
[xiv] People v. Kollmann, 33 Ill. App. 3d 629, 342 N.E.2d 240 (5th Dist. 1975); State v. Celestine, 439 So. 2d 426 (La. 1983).
[xv] Moore v. Com., 207 Va. 838, 153 S.E.2d 231 (1967).
[xvi] People v. Rushing, 130 Cal. 449, 62 P. 742 (1900).
[xvii] Heavey v. Commercial Nat. Bank, 27 Utah 222, 75 P. 727 (1904).
[xviii] Peoples Bank & Trust Co. v. Fidelity & Cas. Co. of N. Y., 231 N.C. 510, 57 S.E.2d 809, 15 A.L.R.2d 996 (1950).
[xix] U.S. v. Peterson, 808 F.2d 969, 22 Fed. R. Evid. Serv. 433 (2d Cir. 1987).
[xx] Smith v. Com., 282 S.W.2d 618 (Ky. 1955); State v. Talbot, 160 Me. 103, 198 A.2d 163 (1964).
[xxi] U. S. v. Tucker, 473 F.2d 1290 (6th Cir. 1973); Hall v. U. S., 372 F.2d 603 (8th Cir. 1967); U. S. v. Price, 655 F.2d 958 (9th Cir. 1981).
[xxii] Rapp v. State, 274 So. 2d 18 (Fla. Dist. Ct. App. 4th Dist. 1973).
[xxiii] People v. Dunn, 185 A.D.2d 54, 592 N.Y.S.2d 299 (1st Dep’t 1993).
[xxiv] Edge v. United States, 270 F.2d 837 (5th Cir. 1959).
[xxv] Chambers v. State, 22 Ga. App. 748, 97 S.E. 256 (1918).
[xxvi] State v. Escobedo, 404 So. 2d 760 (Fla. Dist. Ct. App. 3d Dist. 1981).
[xxvii] Billings v. State, 107 Ind. 54, 6 N.E. 914 (1886); Brewer v. State, 32 Tex. Crim. 74, 22 S.W. 41 (1893).
[xxviii] People v. Smith, 259 Ill. App. 3d 492, 197 Ill. Dec. 516, 631 N.E.2d 738 (4th Dist. 1994).
[xxix] People v. Pfeiffer, 243 Ill. 200, 90 N.E. 680 (1909); Green v. State, 76 So. 2d 645, 49 A.L.R.2d 847 (Fla. 1954).
[xxx] Warren v. State, 247 Ala. 595, 25 So. 2d 698 (1946).
[xxxi] State v. Young, 46 N.H. 266, 1865 WL 1379 (1865).
[xxxii] State v. Young, 46 N.H. 266, 1865 WL 1379 (1865).
[xxxiii] Greis v. Fidelity & Cas. Co. of N. Y., 19 F. Supp. 480 (N.D. Okla. 1937); Harrell v. State, 79 Fla. 220, 83 So. 922 (1920).
[xxxiv] State v. White, 563 N.W.2d 615 (Iowa 1997).
[xxxv] People v. Reichert, 357 Ill. 205, 191 N.E. 220, 93 A.L.R. 862 (1934).
[xxxvi] State v. Thornburg, 28 N.C. 79, 6 Ired. 79, 1845 WL 1082 (1845).
[xxxvii] State v. Cowley, 79 N.M. 49, 439 P.2d 567 (Ct. App. 1968).
[xxxviii] Com. v. Butler, 18 Ky. L. Rptr. 614, 37 S.W. 840 (Ky. 1896).
[xxxix] State v. Kattlemann, 35 Mo. 105, 1864 WL 2858 (1864).
[xl] Barnum v. State, 15 Ohio 717, 1846 WL 157 (1846); State v. Maxwell, 47 Iowa 454, 1877 WL 822 (1877).