State v. LaRue
| Decision Date | 12 July 1971 |
| Docket Number | No. 499--I,499--I |
| Citation | 5 Wn.App. 299,487 P.2d 255,65 A.L.R.3d 1299 |
| Parties | , 65 A.L.R.3d 1299 STATE of Washington, Respondent, v. Steven Howard LaRUE, Appellant. |
| Court | Washington Court of Appeals |
Smith & Welden, Daniel Hoyt Smith, Seatle, Court appointed, for appellant.
Christopher T. Bayley, King County Pros. Atty., John E. Nelson, Deputy Pros. Atty., Seattle, for respondent.
Steven Howard LaRue was convicted of the crime of forgery in the first degree. At trial he waived a jury and stipulated that the state's evidence would establish the following:
That on September 2, 1969, a Travelers Express personal money order in the amount of $25 was stolen from a Seattle business establishment. LaRue could not have stolen the money order because he was in the Washington State Penitentiary on the day that it was stolen.
That the money order form provided appropriate spaces for the date, a serial number, the name of the payee, and the purchaser's signature and address. Except for the imprinted dollar amount and a magnetic computer processing number, the stolen money order was in blank.
That on November 19, 1969, credit cards belonging to one Goldsmith were stolen from his automobile.
That on December 1, 1969, LaRue attempted to purchase an electric razor from a J. C. Penney department store. He offered the stolen money order in payment. In the presence of store employees he completed the money order form, writing the date, the name 'Penneys' as payee, and signing Goldsmith's name in the blank designated 'purchaser's name.' The sales person directed LaRue to the credit office where he endorsed the money order with the name Goldsmith on its reverse side. While LaRue was still in the credit office, it was ascertained that the money order had been stolen. When LaRue was asked to wait, he attempted to flee, and it was necessary to forcibly restrain him.
LaRue testified that he found the money order on the floor of a tavern shortly before going to the Penneys store. He said that he found a wallet on the curb opposite the front door of the store and that credit cards of Goldsmith were in the wallet. He further testified that he believed that the money order had a value of $25 regardless of the name written in the space designated for the purchaser's signature and that he had no intention of defrauding Goldsmith or anyone else. He stated that he used Goldsmith's name because he was unable to provide any satisfactory identification of himself.
LaRue argues that he is not guilty of forgery as a matter of law. His reasoning is that the writing of another's name on a personal money order cannot constitute forgery because the signature in the space designated 'purchaser's name' has no effect on the validity of a money order.
LaRue points out that it is not the practice of issuers of personal money orders to retain specimens of the signatures of the persons to whom the money orders are sold, and therefore the issuers will accept and pay when the orders are presented no matter who signs as purchaser. LaRue reasons that it must necessarily follow that his writing a false signature did not in any way affect the validity or negotiability of the money order. LaRue claims that Penneys would not have lost anything had it completed the transaction and that under no circumstances was Goldsmith harmed by the use of his name.
Insofar as applicable to LaRue's admitted acts, the crime of forgery is defined by RCW 9.44.020 as follows:
Every person who, with intent to defraud, shall forge any writing or instrument by which any claim, privilege, right, obligation or authority, or any right or title to property, real or personal, is or purports to be * * * evidenced, created * * * transferred * * * or affected, or any request for the payment of money or delivery of property or any assurance of money or property, or any writing or instrument for the identification of any person * * * shall be guilty of forgery in the first degree * * *
The essence of the crime of forgery is stated in 36 Am.Jur.2d Forgery § 1 (1968):
Forgery may be defined as the fraudulent making or alteration of a writing to the prejudice of another man's rights or as the 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.
(Footnotes omitted.)
The test of whether or not a false writing is a forgery is frequently stated to be whether or not the writing, if genuine, woud have efficacy as affecting some legal right. State v. Haislip, 77 Wash.2d 838, 467 P.2d 284 (1970).
Personal money orders have been characterized as 'mavericks' under the Uniform Commercial Code, RCW 62A. See Comment, Personal Money Orders and Teller's Checks: Mavericks Under the UCC, 67 Col.L.Rev. 524, 525 (1967); also, 85 The Banking Law Journal, 95 (1968). 1 The author of the comment notes that there is confusion among banks, payees and purchasers of personal money orders as to their precise legal nature. It has been held that a personal money order is 'akin' to a bank cashier's check and thus represents a direct bank obligation to pay a holder. Rose Check Cash. Serv., Inc. v. Chemical Bank N.Y. Trust Co., 43 Misc.2d 679, 252 N.Y.S.2d 100 (1964). This view of the nature of a personal money order would tend to support LaRue's theory.
However, in a later New York case, the holding of Rose Check Cash. Serv., Inc. v. Chemical Bank N.Y. Trust Co., Supra, was rejected. Garden Check Cash. Serv., Inc. v. First Nat'l City Bank, 25 A.D.2d 137, 267 N.Y.S.2d 698 (1966). In the ruling, which was affirmed by New York's highest appellate court (Garden Check Cash. Serv., Inc. v. First Nat'l City Bank, 18 N.Y.2d 941, 277 N.Y.S.2d 141, 223 N.E.2d 566 (1966)), it was held that a personal money order is essentially the equivalent of a personal check. The rationale of the decision is that the drawer (purchaser) of a money order does not purchase the drawee's (the bank's) 2 credit. He merely deposits a sum of money with the drawee against which he may draw by written order. This view of the legal nature of a personal money order finds support in the provisions of the Uniform Commercial Code. A personal money order, in all respects, fulfills the definition of a 'draft' under the provisions of RCW 62A.3--104. 3
A 'check' is also a 'draft' if it is drawn on a bank and payable on demand. RCW 62A.3--104.
A 'draft' is an 'order to pay' but is not an assignment of funds.
A check or other draft does not of itself operate as an assignment of any founds in the hands of the drawee available for its payment, and the drawee is not liable on the instrument until he accepts it.
An inherent right of the drawer of a draft is the right to stop payment before it had been accepted by the drawee. Here the drawer, the Seattle business establishment from which the money order was stolen, had the right to stop payment before the money order was accepted by the drawee, American Express. The purchaser's magnetic computer processing numbered copy of the money order and American Express' similar copy would provide the means of identifying the money order which LaRue attempted to cash when it was presented, even though American Express' copy did not identify the purchaser by name.
When the nature of a personal money order is thus conceived, it is clear that when LaRue wrote a false name as drawer of the money order with the intent that Penneys accept it, he forged the instrument. Penneys was entitled to accept the order in the belief that the signature of the drawer was genuine and thus know that, if the drawer stopped payment, it would have recourse against him. To this end it was prudent that Penneys identify the drawer of the money order. Under the circumstances, LaRue's use of the Goldsmith name as purchaser (drawer) of the money order was a forgery If his intent was to defraud Penneys.
LaRue filed a supplemental pro se brief which we consider with the brief submitted by his appointed counsel. In each brief error is assignment to the failure of the trial judge to formally find as a fact that LaRue had the 'intent' to defraud.
Trial courts and prosecuting attorneys have been repeatedly admonished that RCW 4.44.050, RCW 10.46.070 and CR 52 require formal findings of fact and conclusions of law as to each element of a crime charged when a defendant in a criminal trial has waived his right to have his guilt or innocence adjudged by a jury. We reemphasize the importance of this requirement. See State v. Russell, 68 Wash.2d 748, 415 P.2d 503 (1966).
The state has responded to LaRue's challenge by directing our attention to the fact that although there was no finding of fact on the issue of intent, the trial judge's second conclusion of law is '(t)hat the defendant Steven Howard LaRue is guilty of the crime of forgery in the first degree As charged in the information * * *' (Italics ours.) The state points out that the information charges LaRue with 'intent' to defraud. Therefore, the state reasons, the trial judge found 'intent' as a fact but combined that finding with his conclusion as to guilt. But the rule of State v. Russell, Supra at 750, 415 P.2d at 505 is that
general findings such as 'the matters and things set forth in the complaint are true,' are 'entirely insufficient' for an appellate review. (Groff v. Department of Labor & Indus., 65 Wash.2d 35, 40, 395 P.2d 633 (1964).)
The crime of forgery is made up of two separate elements. The first element is the physical act of falsifying a writing, and the second is in intent to defraud. This case is unusual in that LaRue concedes that he falsified the signature of Goldsmith upon the money order, and as hereinbefore discussed, the first element of the crime is thus established.
To reach his conclusion that LaRue's acts were such as to make him 'guilty of the crime of forgery in the first degree as charged in the...
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