Little v. State

• Decision Date: 31 October 1978
• Docket Number: No. 77-139-CR,77-139-CR
• Citation: 271 N.W.2d 105,85 Wis.2d 558
• Parties: Charles Allen LITTLE, Plaintiff in error, v. STATE of Wisconsin, Defendant in error.
• Court: Wisconsin Supreme Court

Page 105

271 N.W.2d 105

85 Wis.2d 558

Charles Allen LITTLE, Plaintiff in error, v. STATE of Wisconsin, Defendant in error.

No. 77-139-CR.

Supreme Court of Wisconsin.

Submitted on Briefs Sept. 7, 1978.

Decided Oct. 31, 1978.

Howard B. Eisenberg, State Public Defender, and Jack E. Schairer, Asst. Public Defender, for plaintiff in error.

Bronson C. La Follette, Atty. Gen., and Nadim Sahar, Asst. Atty. Gen., for defendant in error.

ABRAHAMSON, Justice.

Charles Allen Little (the defendant) was found guilty of forgery (uttering) pursuant to secs. 943.38(2) ¹ and 939.05, ² Stats., after his guilty plea was accepted by the trial court.

The factual basis for the guilty plea consisted of a police officer's testimony that Little entered a National Food Store and presented a check he knew was forged to the store manager for cashing; that the store manager recognized the check as a stolen check and called the police; that the police apprehended Little at the store when they arrived; and that Little received no money or merchandise for the check.

The issue on appeal is whether a sufficient factual basis was presented to the trial court for the acceptance of the defendant's guilty plea. We conclude that a sufficient factual basis was presented to the trial court for the acceptance of Little's guilty plea to the charge of forgery (uttering) contrary to sec. 943.38(2), Stats. We affirm the conviction.

Sec. 971.08(1)(b), Stats., provides that "before the court accepts a plea of guilty or no contest, it shall: . . . (b) Make such inquiry as satisfies it that the defendant in fact committed the crime charged." See Ernst v. State, 43 Wis.2d 661, 674, 170 N.W.2d 713 (1969). This court has described the purpose of such inquiry and the standard of review applicable to it as follows:

". . . The purpose of the statutory requirement for a court inquiry as to basic facts is to protect the defendant who pleads guilty voluntarily and understanding the charge brought but not realizing that his conduct does not actually fall within the statutory definition of the charge. What is required is a sufficient postplea inquiry to determine to the court's satisfaction that the facts, if proved, 'constitute the offense charged and whether the defendant's conduct does not amount to a defense.' At the time of taking the plea, the trial court may consider hearsay evidence, such as testimony of police officers, the preliminary examination record and other records in the case. Upon review, we are to determine whether the trial court 'possessed sufficient facts and made sufficient inquiry to satisfy itself that the acts admitted constituted the crime committed.' " Morones v. State, 61 Wis.2d 544, 552, 553, 213 N.W.2d 31, 36 (1973).

This court has set forth the elements of uttering under sec. 943.38(2) as follows:

". . . The crime with which defendant was charged, uttering a forged check, has two elements: first, that the person utter as genuine . . . any forged writing, and second, that the person know that the writing has been falsely made or altered . . . ." Johnson v. State, 53 Wis.2d 787, 791, 193 N.W.2d 659, 661 (1972).

The defendant attacks the sufficiency of the evidence to support a guilty plea on each of these two elements. The defendant's primary contention is that to "utter as genuine" a forged check he had to pass title to the check and he had to receive value for the check.

There is no statutory definition in Wisconsin of "uttering as genuine a forged object or writing." Defendant relies upon two Wisconsin cases to support his contention that to utter a forged check one must succeed in having it accepted and cashed. In each case, Brown v. State, 52 Wis.2d 496, 190 N.W.2d 497 (1971), and Lawless v. State, 114 Wis. 189, 89 N.W. 891 (1902), the court affirmed a conviction for uttering a forged check. In each case the check had not merely been presented or offered by the defendant, but it had been accepted or cashed. Neither case raises or resolves the issue which defendant argues here.

A forgery statute is "aimed primarily at safeguarding confidence in the genuineness of documents relied upon in commercial and business activity." LaFave & Scott, Handbook on Criminal Law, p. 671 (1972). This purpose underlies not only the prohibition against forging a false instrument but also that against possessing or uttering such an instrument. Perkins, Criminal Law, pp. 339-40 (2d ed. 1969). It would be anomalous for the legislature to prohibit the possession of a false instrument with intent to utter but not the tendering or offering of it. The actual tendering of a forged instrument, whether the instrument is accepted or not, is more harmful to public confidence in the genuineness of documents than is the possession of the instrument with intent to utter.

The Wisconsin forgery statute reflects this policy. Under sec. 943.38(1) and (2) three forms of conduct are made felonies: the forging of a writing or object, the possession of a forged object with intent to utter, and the uttering of a forged object. Though these forms of conduct are distinct, they constitute only one offense, so that the person who both forges and utters an instrument is punishable for but one violation of that section. State v. Nichols, 7 Wis.2d 126, 129, 95 N.W.2d 765 (1959).

Little asserts that because the check he tendered was not accepted or cashed, he is guilty of only an attempt to utter. Under sec. 943.38(1) and (2), the possession of a forged instrument with intent to utter is punishable by a fine of not more than $5,000, imprisonment for not more than ten years, or both. The uttering of a forged instrument makes one liable to the same punishment. If Little's conduct were held to be merely an attempt to utter, however, the fine or imprisonment imposed could not exceed one-half the maximum penalty for the completed crime. Sec. 939.32, Stats. ³ If we accept Little's reasoning we would reach the anomalous result that although Little's conduct is more harmful to public confidence in the genuineness of checks than would be his possession of a forged check with intent to utter, his conduct would make him liable to only half the punishment to which he would be subject if he were charged with possessing a forged check with intent to utter.

It might be argued that the three distinct forms of conduct punishable under the forgery statute create different risks or disruptions to commercial and business activity and should be made subject to different penalties. But this argument is properly made to the legislature, not to this court. There can be no doubt that when the legislature assigned the same punishment to possession of a forged check with intent to utter and to the cashing of a forged check, it intended that punishment to apply also to one who is unsuccessful in cashing a forged check. The defendant who, with intent to defraud, was unsuccessful in cashing a forged check is not punishable under the general attempt statute, sec. 939.32, Stats.; he is punishable for having committed the offense of uttering within the meaning of sec. 943.38.

Other jurisdictions which have faced this issue have similarly concluded that the acceptance or cashing of the forged check is not an element of the crime of uttering. ⁴ The virtually universal rule is that "a forged instrument is uttered when it is offered as genuine by words or conduct indicating that it is genuine, without regard to whether it is accepted." 2 Wharton's Criminal Law and Procedure, sec. 650, p. 441 (1957).

We are persuaded that under the existing statute the substantive offense of uttering encompasses presenting a forged instrument for payment.

Little further asserts that the guilty plea should not have been accepted because the record fails to show that he knew the precise respect in which the check was...