People v. Ford
| Citation | 417 Mich. 66,331 N.W.2d 878 |
| Decision Date | 23 December 1982 |
| Docket Number | No. 8,64965 and 65235,Docket Nos. 64572,A,J,Nos. 7,8,s. 7 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Richard James FORD, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George GONZALES, a/k/a Ray Anthony Gonzales, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jesse HOWARD, Defendant-Appellant. Calendarpril Term 1981. Calendarune Term 1981. 417 Mich. 66, 331 N.W.2d 878 |
| Court | Supreme Court of Michigan |
This opinion was written by Justice BLAIR MOODY, Jr., prior to his death on November 26, 1982. We concur in this opinion and adopt it as our own.
On November 6, 1978, defendant pled guilty to a charge of uttering and publishing a false instrument or other writing. M.C.L. Sec. 750.249; M.S.A. Sec. 28.446. 1 Defendant was sentenced to a minimum of 4 and a maximum of 14 years imprisonment to be served consecutively with a sentence defendant was already serving.
Following an appeal of right to the Court of Appeals, that Court set aside defendant's conviction, holding that it was an abuse of prosecutorial discretion to charge defendant under the general uttering and publishing statute when, on the facts presented, there This Court granted leave to appeal to determine the impact of the credit card protection act on the issue of whether an accused who forges a credit card slip is properly chargeable with uttering and publishing, and whether the prosecutor abused his discretion in charging the defendant in the instant case under the uttering and publishing statute.
existed a more specific charge, misuse of a credit card. M.C.L. Sec. 750.157q; M.S.A. Sec. [417 MICH 76] 28.354(16). 2 People v. Richard Ford, 95 Mich.App. 412, 291 N.W.2d 60 (1980).
We hold that the credit card statutes do not preclude charging an accused with uttering and publishing when a credit card slip is forged and that, on the facts of this case, there was no abuse of prosecutorial discretion. The Court of Appeals decision is reversed and defendant's conviction is reinstated.
On July 22, 1978, defendant presented a Clark Oil credit card to the attendant of a Battle Creek area gas station. The card had been issued to the Calhoun County Action Agency in the name of Al Johnson. Defendant signed the name Al Johnson on the credit card sales slip and obtained $21.30 in cash from the attendant. Defendant's possession and use of the credit card were unauthorized. Defendant admitted that when he presented the card he did so with the intent to defraud the attendant.
Defendant was charged with uttering and publishing in violation of M.C.L. Sec. 750.249; M.S.A. Sec. 28.446. Defendant's guilty plea to the charge was entered pursuant to a plea agreement. Under this agreement, the prosecutor agreed to recommend to the court a 5- to 14-year sentence and further, that a supplemental information would not be filed. Defendant was sentenced to a 4- to 14-year term to be served consecutively to the sentence he was already serving.
In setting aside the defendant's conviction, the Court of Appeals held that it was an abuse of prosecutorial discretion to charge defendant with uttering and publishing, carrying a maximum 14-year penalty, when a more specific statute, credit card misuse, carrying a maximum 4-year penalty was more applicable to the offense.
There is no dispute that defendant's forgery of the credit card sales slip, combined with his presentation of the slip and his intent to defraud, constitutes the offense of uttering and publishing. People v. Hester, 24 Mich.App. 475, 180 N.W.2d 360 (1970). On the facts of the instant case, defendant could also have been charged with misuse of a credit card, since defendant used the credit card knowing that such use was unauthorized.
Defendant contends that by its passage of the credit card bill, 1967 PA 255, the Legislature demonstrated its intent that all credit card crime would be controlled by this act's eight sections. Therefore, claims defendant, it was improper for the prosecutor to charge him with the general uttering and publishing violation when the more specific credit card statute was applicable.
Because there is no exclusivity provision in the credit card statutes, it is necessary to ascertain what effect the Legislature intended the current credit card statutes to have on other statutory violations.
The enactment of the present credit card statutes, M.C.L. Secs. 750.157m-750.157u; M.S.A. Secs. 28.354(13)-28.354(20) in 1967 replaced the single credit card statute which had punished misuse of a credit card as a misdemeanor. M.C.L. Sec. 750.219a; M.S.A. Sec. 28.416(1). 3 When this single credit card In People v. Shaw, 27 Mich.App. 325, 183 N.W.2d 390 (1970); lv. den. 385 Mich. 760 (1971), the defendant was charged with forgery of a credit card slip contrary to M.C.L. Sec. 750.248; M.S.A. Sec. 28.445 4 and was convicted following a jury trial. Shaw's argument on appeal was the same as that advocated by defendant Ford in this case. Shaw contended that the prosecutor had abused his discretion in charging him under the general forgery statute when the statute concerning the unauthorized use of a credit card was available.
statute was in effect, the Michigan Court of Appeals decided two cases on point. In People v. Hester, supra, the court upheld the defendant's conviction of forgery of a credit card slip under the uttering and publishing statute. Although the issue whether Hester was properly charged under the general statute instead of the credit card statute was not directly addressed, the court was cognizant of the issue. Hester, 483, 180 N.W.2d 360.
While the Shaw court acknowledged the "fundamental rule of statutory construction that when two statutes encompass the same subject matter, one being general and the other specific, the latter will control", it found this rule not to be applicable because the two statutes did not cover the same subject matter. Shaw, 326, 183 N.W.2d 390. The actual forgery necessary to establish an offense under the forgery statute was not necessary to prove the offense of credit card misuse. Therefore, the Shaw court held: "Where the specific credit card offense charged did not necessarily involve the same elements as a more general statutory prohibition, a specific credit card statute will not preclude prosecution or conviction under more general statutes." Shaw, 327, 183 N.W.2d 390.
We hold that the Shaw court's analysis is still good law and is applicable to the case at bar. Defendant Ford could have been charged under the present credit card statute; however, his prosecution under the general uttering and publishing statute was not precluded. Violation of the credit card statute occurs whenever a credit card is knowingly misused, regardless whether a forgery is committed. When the facts of a given case indicate that the additional element of forgery is present, then the facts will support a conviction under either the general statute or the credit card statute.
Defendant Ford claims that the Shaw analysis can no longer be used in light of the credit card act. However, there are several indications that the Legislature did not intend these statutes to be the exclusive chargeable offenses when misuse of a credit card includes presentation of a forged credit card slip.
First, all but one 5 of the seven specific offenses delineated are felonies, compared to the prior single credit card offense which was a misdemeanor. This indicates the Legislature's intent to attach harsher penalties to credit card crimes. Forgery of a credit card sales slip or presentation of a slip was already a felony with a maximum sentence of 14 years. The punishment matrix developed by the Legislature in the credit card statutes was intended to complement the existing general felony statutes.
In addition, a close analysis of the included offenses in the credit card act reveals that a substantive offense such as the one at bar was not specifically addressed. This is especially significant when one notes the detail and specificity of the new offenses which are included. The Legislature's failure to specifically address the act of misusing a credit card involving a forgery in its list of credit card misuse felonies indicates that the omission was deliberate. This is made even clearer by the fact that forgery committed by any person to whom a credit card is presented is covered. M.C.L. Sec. 750.157u; M.S.A. Sec. 28.354(20). 6
Furthermore, it is logical to reason that the Legislature intended the general forgery statutes to be applicable when misuse of a credit card includes a forged sales slip. The additional forgery element makes the offense more culpable, thus justifying different treatment and a harsher penalty. Prior to the enactment of the credit card statutes, the act of presenting a forged credit card slip could have been punished as a felony under either the forgery statute (see footnote 4) or the uttering and publishing statute (see footnote 1). None of the specific felony credit card offenses...
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