State v. Lutes

• Decision Date: 26 April 1951
• Docket Number: No. 31497,31497
• Citation: 38 Wn.2d 475,230 P.2d 786
• Court: Washington Supreme Court
• Parties: STATE, v. LUTES.

Page 475

38 Wn.2d 475

230 P.2d 786

STATE, v. LUTES.

No. 31497.

Supreme Court of Washington, Department 1.

April 26, 1951.

Will Lanning, Bill Lanning, Seattle, for appellant.

Charles O. Carroll, John E. Prim, Seattle, for respondent.

FINLEY, Justice.

The appellant, Ernest Lutes, was charged with first degree forgery. After a plea of not guilty, he was tried before a jury, which found him guilty as charged. At the conclusion of the state's case, a motion in behalf of the appellant for dismissal on the grounds that the state had failed to prove the crime as charged was denied. The appellant introduced no evidence. Appellant has appealed, assigning as error: 1. The denial of the aforementioned motion; 2. The acceptance into evidence of a statement signed by appellant; 3. The giving of certain instructions by the court; and, 4. The refusal of the court to give certain instructions requested on behalf of appellant.

The basic questions in this appeal are:

1. Whether the use of, (a) an assumed, or, (b) a fictitious name, can constitute first degree forgery; and

2. Whether, in this case, the state's evidence could support a jury verdict that appellant was guilty of first degree forgery. In this opinion both questions are resolved in the affirmative in the somewhat detailed discussion that follows.

It appears from the evidence that appellant moved to the Haddon Hall Apartments in Seattle, Washington, shortly before February 6, 1950; that while there, he was known to the manager of the apartment house as a Mr. J. C. Coe. The manager of the apartment house testified that a check in the sum of $55, drawn on the Seaboard Branch of the Seattle First National Bank, was accepted by the manager's wife; that appellant received therefor some cash and the balance was applied on the rental of an apartment. An officer of the bank testified that their records back to the year 1934 showed no account in the name of J. C. Coe. Over the objection of the appellant, the prosecution introduced a statement taken before an interrogating officer of the Seattle police department and signed by the appellant. The material portion of the statement is as follows:

'Feb. 22, 1950 10:15 AM.

'Ernest F. Lutes, 46 years Fry Hotel, Seattle. I am not working at present. I have lived around Seattle since 1933.

'On being shown the following described check Seattle Wash Feb. 6, 1950--pay to Haddon Hall Apts $55.00 signed J. C. Coe--Rt No. 1 Box 7C Renton drawn on the the Seaboard Branch, Seattle 1st Nat'l Bank.

'I wrote and cashed this check at the Haddon Hall Apts 1921-3rd Ave. I received $10.00 cash and $45.00 was for 2 weeks rent. I knew at the time I wrote and cashed this check that I did not have an account in the Seaboard Branch of Seattle 1st Nat'l Bank under the name of J. C. Coe or any other name. I just made up the name of J. C. Coe.

'I have read the above and it is true to the best of my knowledge.

'Signed:

'Ernest Lutes.'

The interrogating officer of the Seattle police department testified that he talked to the appellant on February 22, 1950, and at that time knew appellant as 'Ernest Lutes.'

The foregoing is from the state's case. The appellant, as pointed out above, introduced no evidence but relied upon his motion to dismiss.

Rem.Rev.Stat. §§ 2583 to 2590, inclusive, relate to the crime of first degree forgery. The provisions of Rem.Rev.Stat. § 2583, seemingly pertinent to the instant case, may be excerpted as follows: 'Every person who, with intent to defraud, shall forge * * * any request for the payment of money or delivery of property or any assurance of money or property * * * shall be guilty of forgery in the first degree, and shall be punished by imprisonment in the state penitentiary for not more than twenty years.'

The provisions of Rem.Rev.Stat. § 2590, seemingly pertinent to the instant case, may be excerpted as follows:

'Within the provisions of this subdivision relating to forgery * * *

'The words 'forge,' 'forgery,' 'forged' and 'forging,' shall include false making, * * * of a genuine instrument in whole or in part, the false making or counterfeiting of the signature of a party or witness, real or fictitious, * * *.'

It should be noted that the above quoted statutes do not define the crime of first degree forgery in minute and specific detail. The critical or operative word in the excerpt from Rem.Rev.Stat. § 2583, is the word 'forge.' Its meaning is to be determined by reference to accepted and well understood definitions of the term.

Forgery under the early English statutes was a crime punishable by death. It would certainly not be indicated by any of the briefs filed in this appeal, but decisions defining the crime of forgery are legion. On the basis of our independent research, two definitions of the crime of forgery seem to emerge from the voluminous case law on the subject. One definition seems more narrow in scope than the other. In Ex parte Windsor, 10 Cox C.C. 118, 11 Jur.N.S. 807, 13 Weekly Rep. 655 (1865), we find the following quoted definition: 'As to forgery, * * * it is the making or altering of a document with intent to defraud or prejudice another so as to make it appear to be a document made by another.'

The above definition appears to be the foundation of the decisions in the following English cases: Rex v. Dunn, 1 Leach 57, 168 Eng.Rep. 131 (1765); Reg. v. Martin, 5 Q.B.D. 34 (1879). In line with the foregoing definition, the following language is found in Commonwealth v. Costello, 1876, 120 Mass. 358, 370: 'The essential element of forgery consists in the intent, when making the signature or procuring it to be made, to pass it off fraudulently as the signature of another party than the one who actually makes it.'

See, also, State v. Wilson, 168 La. 932, 123 So. 624; Mann v. People, concurring opinion, 15 Hun. N.Y., 155, 165, affirmed 75 N.Y. 484; Com. v. Baldwin, 11 Gray, Mass., 197, 198; State v. Young, 46 N.H. 266; Edwards v. State, 53 Tex.Cr.R. 50, 108 S.W. 673; State v. Lamb, 198 N.C. 423, 152 S.E. 154; Goucher v. State, 113 Neb. 352, 204 N.W. 967, 41 A.L.R. 227.

Appellant contends that the foregoing is the definition of the crime of forgery contemplated by the statutes of the state of Washington. This definition will be referred to hereinafter as the 'narrow' definition of the crime of forgery.

A somewhat broader definition of the crime of forgery is set forth in 3 Jacob's Fisher's Digest (1882), 3232, reading as follows: 'Forgery is the false making of an instrument, which purports on the face of it to be good and valid for the purposes for which it was created, with a design to defraud any person or persons. R. v. Jones, 2 East P.C. 991.'

See, also, 6 Mews' Digest (Eng.) (2d Ed.) 490. This definition seems to be the foundation of the decisions in the following English cases: Rex. v. Lockett, 1 Leach 94, 168 Eng.Rep. 149 (1772); Rex v. Sheppard 1 Leach 226, 168 Eng.Rep. 215 (1781); Rex v. Marshall, Russ & Ry. 75, 168 Eng.Rep. 691 (1804); Rex v. Peacock, Russ & Ry. 278, 168 Eng.Rep. 801 (1814); Reg. v. Ritson, 11 Cox C.C. 352 (1869).

Similarly, in 2 Bouv.Law Dict., Rawle's 3d Rev. 1283, the crime of forgery is defined broadly as follows: 'The false making or materially altering, with intent to defraud, any writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability. 2 Bish.Cr. Law, Sec. 523; Smith v. State, 29 Fla. 408, 10 So. 894.'

See, also, Dexter Horton Nat. Bank v. United States F. & G. Co., 149 Wash. 343, 270 P. 799; State v. Wheeler, 20 Or. 192, 25 P. 394, 10 L.R.A. 779; Harris v. State, 19 Ala.App. 484, 98 So. 316; State v. Melson, 161, La. 423, 108 So. 794; Lyman v. State, 136 Md. 40, 109 A. 548, 9 A.L.R. 401; Randolph v. State, 65 Neb. 520, 91 N.W. 356; People v. Warner, 104 Mich. 337, 62 N.W. 405; State v. Larson, 39 S.D. 120, 163 N.W. 566; 17 Words & Phrases p. 341, et seq.

This last definition will be referred to hereinafter as the 'broad' definition. It appears to be sufficiently broad to cover the situation where a party falsely makes a writing, using not the name of another actual person, but either, (a) an assumed name, assumed for a dishonest purpose, or, (b) a fictitious name. One distinction between the 'narrow' and the 'broad' definition appears to be that the 'narrow' one contemplates a fraudulent use by one party of the name of another actual party; while the 'broader' definition includes the use of either (a) an assumed name, assumed for a dishonest purpose, or (b) a fictitious name.

Two things should be noted at this point. First, as a general rule, forgery cannot be charged if the accused signs or uses his own true or actual name. State v. Ford et al., 89 Or. 121, 172 P. 802; State v. Adcox, 171 Ark. 510, 286 S.W. 880. However, this observation must be qualified when the name of the accused is identical with the name of another and the writing is passed off by the accused--not as his own but as that of the other person with the identical name--in which case it may be forgery. State v. Farrell, 82 Iowa 553, 48 N.W. 940; Barfield v. State, 29 Ga. 127; Edwards v. State, 53 Tex.Cr.R. 50, 108 S.W. 673; See, also, 37 C.J.S., Forgery, § 9, p. 38. Second, a person can change his name or adopt any name he may desire, provided the same is done for an honest purpose. Christianson v. King County, D.C., 196 F. 791; Petition of Merolevitz, 320 Mass. 448, 70 N.E.2d 249, and cases cited therein.

After adopting or assuming a name for an honest purpose, its use (for example, the signing of an honestly assumed name on an N.S.F. check, or other instrument) would not constitute forgery, unless the person using the name falsely assumed it for the purpose and with the intent of perpetrating a fraud. In Rex v. Peacock, Russ & Ry. 278, 168 Eng.Rep. 801, 804 (1814), charging forgery, where the defendant attempted, on appeal, to justify use of an allegedly assumed name, an interesting comment relative to the...