Muhammad v. Com.

• Decision Date: 24 September 1991
• Docket Number: No. 0547-90-2,0547-90-2
• Court: Virginia Court of Appeals
• Parties: Abdullah Imam MUHAMMAD v. COMMONWEALTH of Virginia. Record

Page 818

409 S.E.2d 818

13 Va.App. 194

Abdullah Imam MUHAMMAD v. COMMONWEALTH of Virginia.

Record No. 0547-90-2.

Court of Appeals of Virginia.

Sept. 24, 1991.

Elizabeth Dashiell Scher (Morchower, Luxton and Whaley, on brief), Richmond, for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BAKER, BENTON and COLEMAN, JJ.

JOSEPH E. BAKER, Judge.

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. ¹ A printed serial number, 13691, appeared at the top right corner. On the line for the amount to be paid, the sum of $311.54 had been imprinted by a check-writer machine. Appellant's name and address appeared on the front as the payee. The line at which the drawer's signature normally appears did not contain a signature. The back of the check contained a handwritten endorsement showing appellant's name and address. The address written on the back of the check was the same as the address shown on the front. The clerk, as required, sought management approval of the check. Upon viewing the check, the manager requested appellant to come to the store office. Appellant admitted that he knew the check had been stolen and had placed the endorsement thereon.

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 authority to possess or cash the check.

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.

The instrument presented for collection was a form check with the name and address of the purported drawer imprinted on the face of the check; appellant's name was fraudulently placed on the check as the intended payee and endorsed personally by him; and it was falsely represented as a company payroll check genuine in every respect except it was not signed on the line for the drawer's signature. Appellant knew the check had been stolen. He presented the check for the purpose of obtaining merchandise and cash. The evidence is sufficient to prove that appellant, with the intent to defraud, imprinted or caused to be imprinted the sum of $311.54 as the amount of the check, for "PAYROLL," and payable to him. Appellant, with an intent to defraud, endorsed the check. By endorsing the check, regardless of the fact that it lacked a drawer's signature and was irregular on its face, appellant accorded the instrument legal efficacy as between the endorser and transferee because he warranted that he had good title to the instrument and that it had not been materially altered. Code § 8.3-417. On its face, the check had a sufficient appearance of genuineness that it possibly "may operate to the injury of another." Gordon, 100 Va. at 829, 41 S.E. at 748. The check was of sufficient apparent legal efficacy to support the trial court's finding that appellant was guilty of forgery and uttering.

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 cancelled 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.

Similarly, although the endorsement by appellant may not have obligated the bank or firm who owned the check to pay it, when appellant filled in the check without authority and endorsed it, he made a false writing which represented that he was the payee of the instrument. When he endorsed the check, he fraudulently warranted that he had title to the instrument and that it had not been altered. Gordon held that "the gravamen of the charge is not the forgery of the check, as such, but, its endorsements, as a receipt." 100 Va. at 828, 41 S.E. at 747. "[C]onceded that, as a check, the paper in question was irregular, possibly so irregular that the bank would have been justified in refusing payment;" nevertheless, "it might be made the vehicle of fraud and prejudice." Id. at 829, 41 S.E.2d at 747.

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, must be capable of deceiving another and "[i]f the resemblance to the genuine instrument is sufficiently close that there is a bare possibility of imposing the instrument on another as genuine, this is sufficient to constitute forgery." 36 Am.Jur.2d Forgery § 21 (1968).

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...