Smith v. State, 388

• Decision Date: 11 August 1969
• Docket Number: No. 388,388
• Citation: 7 Md.App. 457,256 A.2d 357
• Parties: John James SMITH v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 457

7 Md.App. 457

256 A.2d 357

John James SMITH v. STATE of Maryland.

No. 388.

Court of Special Appeals of Maryland.

Aug. 11, 1969.

Irving B. Klitzner, Baltimore, for appellant.

Donald Needle, Asst. Atty. Gen. of Baltimore, Francis B. Burch, Atty. Gen., Charles E. Moyland, Jr., State's Atty. of Baltimore City, Charles Hennick, David R. Eaton, Asst. State's Attys. for Baltimore City, Baltimore, on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.

MURPHY, Chief Judge.

Maryland Code, Article 27, Section 44, provides in part that if any person 'shall falsely make, forge or counterfeit * * * and * * * bill of exchange * * * with intention to defraud any person whomsoever, (he) shall be deemed a felon * * *.'

Appellant was indicted under this statute, the indictment charging that on May 11, 1968 he did, with intent feloniously to defraud, 'falsely make, forge, and counterfeit a certain bill of exchange, to wit, * * * a certain blank check of Arundel Engineering Construction Co., Inc., * * * drawn on the Maryland National Bank, Baltimore, Maryland.' ¹ (Emphasis supplied.)

The evidence at the trial showed that on May 11, 1968, the police, acting under a valid search and seizure warrant, searched appellant's living premises and seized various printing machines and implements utilized in their operation, including a mechanical checkwriter ² and a printer's typeset containing composed type. At the request of the police, appellant ran off an imprint from the composed type, revealing a blank check purportedly that of the Arundel Engineering Construction Co., drawn on the Maryland National Bank of Baltimore, Maryland. The blank check form contained the usual bank check numbers and purported on its face to be drawn against Arundel's payroll account in the Bank. The space on the check for the payee's name, the amount of money for which drawn, and the authorized signature of the payor were all blank. The evidence showed that appellant did not have permission to print checks for Arundel, and that Arundel had no account with the Maryland National Bank.

Appellant, an accomplished printer, admitted composing the type for the blank Arundel checks. He testified that he was preparing to publish a book on the detection of check forgeries and had no intention of attempting to negotiate any of these checks. The evidence showed that no checks of Arundel made from the plates seized from appellant were ever passed or negotiated.

Appellant was also separately charged under Section 44 with having falsely made, forged and counterfeited on various dates five checks of Spring Grove Hospital, payable to designated individuals in specified amounts, as set forth in the indictments, all checks being drawn on the American National Bank and signed by L. B. Smyth. ³ The evidence showed that these checks had been forged and were completely bogus, that they were dishonored because Spring Grove Hospital maintained no account with the American National Bank, and the payor L. B. Smyth was unknown to the Hospital authorities and hence not an authorized signature.

Through the testimony of an F.B.I. expert, the State showed that the composed typeface seized by police from appellant's residence on May 11, 1968, when compared with the print of the Spring Grove checks, revealed certain similar defects in the letter faces, indicating that the Arundel and Spring Grove checks were made from the same plates.

Appellant denied any responsibility for or knowledge of printing, forging or uttering the Spring Grove checks and no evidence was adduced to show any connection between L. B. Smyth and the appellant.

At the conclusion of the trial the court, sitting without a jury, concluded that appellant made all the checks in question with the printing equipment seized from him on May 11, 1968. The court convicted appellant under all six indictments with having falsely made, forged and counterfeited each of the six checks, as charged in the respective indictments. Appellant was sentenced under each indictment to concurrent terms of four years under the jurisdiction of the Department of Correction.

On this appeal, appellant contends that the evidence was insufficient to convict him of any of the offenses. We agree.

Section 44 was originally enacted by Chapter 75 of the Acts of 1799 which was entitled 'An Act for the more effectual preventing of forgery.' In its original form, the Act provided that any person shall be deemed a felon who 'shall falsely make, alter, forge or counterfeit any * * * bill of exchange * * *.' Although amended a number of times since its original enactment, the basic substance of Section 44 is the same now as it was in 1799.

Forgery has been defined as a false making or material alteration, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability. Reddick v. State, 219 Md. 95, and authorities cited at page 98, 148 A.2d 384. More succinctly, forgery is the fraudulent making of a false writing having apparent legal significance. Nelson v. State, 224 Md. 374, 167 A.2d 871. It is thus clear that one of the essential elements of forgery is a writing ⁴ in such form as to be apparently of some legal efficacy and hence capable of defrauding or deceiving. Perkins on Criminal Law, pages 291-294; Clark and Marshall Crimes, (Sixth Edition) Section 12.35; Wharton's Criminal Law and Procedure, (Anderson Edition) Section 641, 643; 36 Am.Jur.2d Forgery, Section 21. ⁵ In Arnold v. Cost, 3 Gill & J., 219, and Laird v. State, 61 Md. 309, it was held in effect that a person cannot be convicted of the forgery of a paper absolutely invalid upon its face and which could not operate to the prejudice of another. If then the instrument is entirely valueless on its face and of no binding force or effect for any purpose of harm, liability or injury to anyone, all authorities agree that it cannot be the subject of forgery. See Annotation, 'Invalid instrument as subject of forgery,' 174 A.L.R. 1300-1338.

By common definition forgery is false making, Reddick v. State, supra, and as used in Section 44, we think the terms 'falsely make' and 'forge' are synonymous, both describing a spurious or fictitious making relating to the genuineness of execution of an instrument. See Marteney v. United States, 216 F.2d 760, 763 (10th Cir.). Similarly, the term 'counterfeit' in common parlance signifies the fabrication of a false image or representation; counterfeiting an instrument means falsely making it; and in its broadest sense it means the making of a copy without authority or right and with a view to deceive or defraud by passing the copy as original or genuine. 20 Am.Jur.2d Counterfeiting, Section 1; Perkins on Criminal Law, page 307. It was noted in Arnold v. Cost, supra, that 'the counterfeiting of any writing with a fraudulent intent whereby another may be prejudiced, is forgery at common law.' The words 'forged' and 'counterfeited' as used in a statute creating the offense of passing 'forged, counterfeited or falsely altered instruments' have been held to be synonymous. Hobbs v. State, 9 Mo. 855. And in Greathouse v. United States, 170 F.2d 512 (4th Cir.), it was held that under the National Stolen Property Act which penalizes the transportation of 'falsely made, forged, altered,...