State v. Mark
| Decision Date | 09 October 1980 |
| Docket Number | No. 46657,46657 |
| Citation | 618 P.2d 73,94 Wn.2d 520 |
| Parties | The STATE of Washington, Respondent, v. Albert M. MARK, Petitioner. |
| Court | Washington Supreme Court |
Edwards & Barbieri, Charles K. Wiggins, Seattle, for petitioner.
Norman Maleng, Pros. Atty., Kenneth W. Sharaga, Sp. Deputy Pros. Atty., Carol S. Hanson, Sp. Deputy, Seattle, for respondent.
James H. Webster, Attorney at Law, Seattle, for amicus curiae.
Albert M. Mark has been a pharmacist in Seattle since 1954 and operates two pharmacies in West Seattle. Mr. Mark provided prescription service to welfare recipients pursuant to the federal Medicaid program under an agreement with the Department of Social and Health Services (Department). As a result of findings made upon an audit of his claims, he was charged with grand larceny and forgery.
The prosecution alleged that Mr. Mark had submitted claim forms for medications neither prescribed by a physician nor delivered to a welfare recipient. Mr. Mark's defense was that discrepancies were caused by inadvertent error and by substituting the names of acceptable drugs for nonformulary drugs actually dispensed but for which the Department would not reimburse the pharmacists. He admitted that he had listed some prescriptions which had not been authorized or delivered; but contended that this was necessary in order to obtain reimbursement for drugs actually furnished and which a computer service that he utilized had improperly rejected.
The claim forms required by the Department included a "prescription form." On this form the actual prescription was required to be reported, and there was a space marked "physician's signature." However, it was the practice of physicians to telephone many prescriptions to the pharmacist. Often, too, a prescription would be renewable. In such instances, the defendant would type or print the physician's name in the place provided for his signature. This practice was authorized by the Department. Each claim form was signed by the defendant, who represented that the facts stated thereon, including the fact of a prescription having been ordered by a physician, were true.
The trial court instructed the jury with respect to grand larceny and also with respect to forgery, as defined in RCW 9.44.010 and .020 1 (Laws of 1909, ch. 249, § 338), which were in effect when the alleged offenses occurred. The jury's verdict found the defendant guilty of both crimes, and the Court of Appeals, Division One, affirmed the judgment entered on the verdict in an unpublished opinion. State v. Mark, 23 Wash.App. 1050 (1979). We granted a petition to review the question whether the writing in of a physician's name on the claim form was an act of forgery if no prescription had in fact been received by the defendant.
The Court of Appeals held that the filling in of blank prescription billing forms without the doctor's authorization constituted forgery. We cannot agree. It is undisputed that the physician's name, when filled in by the defendant, did not purport to be the signature of the physician; rather it was a representation that the physician had prescribed the drugs for which claim was made. As the Court of Appeals recognized, there was no showing that the defendant forged any prescriptions. His offense was in representing to the Department the number and kind of prescriptions which he had received. A misrepresentation of fact, so long as it does not purport to be the act of someone other than the maker, does not constitute forgery.
In Dexter Horton Nat'l Bank v. United States Fid. & Guar. Co., 149 Wash. 343, 270 P. 799 (1928), it was contended that a cashier's unauthorized endorsement of a check in the name of the company, by himself as cashier, was a forgery. That was not a criminal action but rather a suit upon a policy of insurance indemnifying the bank which had cashed the check against losses sustained through payment of forged checks. Even though this court was called upon to construe the language of the policy against the indemnifier, it held that, giving the word "forgery" its ordinary dictionary meaning, the writing was exactly what it purported to be and thus was not a forgery. While the cashier had no authority to sign his company's name and cash the check, he purported to do no more than sign it himself as its agent. The instrument, we said, might be a false writing in that it either directly or by inference stated a lie, but it at least was what on its face it seemed to be.
That is precisely the situation here, and here we deal with a criminal statute which must be strictly construed in favor of the defendant. In writing the doctors' names on his claim form, the defendant represented that they had submitted prescriptions to him, but he did not represent that the doctors themselves had signed the claim forms.
In Dexter Horton, we quoted with approval the following from the case of People v. Bendit, 111 Cal. 274, 43 P. 901 (1896):
149 Wash., at 348, 270 P.2d 799. Accord: State v. Marshall, 25 Wn.App. 240, 606 P.2d 278 (1980).
Thus, there is a significant distinction between a forgery and a writing falsely representing that the facts which it reports are true. Since the claim forms submitted by the defendant were exactly what they purported to be, it was error to instruct the jury that it could properly find the defendant guilty of forgery, and the Court of Appeals was incorrect in sustaining the convictions on those counts.
A number of witnesses testified to the good character and reputation of the defendant in the community. With respect to that testimony, the court instructed the jury as follows:
Evidence has been presented in this case which bears upon the good character and good reputation of the defendant. Such evidence should be...
To continue reading
Request your trial
-
State v. Brown
...side of the case, are not misleading, and when read as a whole, properly inform the jury of the applicable law. State v. Mark , 94 Wash.2d 520, 526, 618 P.2d 73 (1980). Self-defense instructions must do more. Rodriguez , 121 Wash. App. at 185, 87 P.3d 1201. Read as a whole, they must make t......
-
State v. Smith
...it actually is." State v. Esquivel , 71 Wash. App. 868, 870-71, 863 P.2d 113 (1993).¶ 27 Smith analogizes his case to State v. Mark , 94 Wash.2d 520, 618 P.2d 73 (1980). In Mark , a pharmacist completed Medicaid claim forms by writing a physician's name in a space marked "physician's signat......
-
State v. Rice
...of the case, are not misleading, and when read as a whole, properly inform the trier of fact of the applicable law. State v. Mark, 94 Wash.2d 520, 526, 618 P.2d 73 (1980); State v. Foster, 91 Wash.2d 466, 480, 589 P.2d 789 (1979). Moreover, a specific instruction need not be given when a mo......
-
State v. Scherf
...opportunity to argue their theory of the case." State v. Redmond, 150 Wash.2d 489, 493, 78 P.3d 1001 (2003) (citing State v. Mark, 94 Wash.2d 520, 526, 618 P.2d 73 (1980) ). A trial court may refuse an instruction if it is collateral to or repetitious of an instruction already given, in the......