State v. Marshall
| Decision Date | 28 January 1980 |
| Docket Number | No. 6630-7-I,6630-7-I |
| Parties | STATE of Washington, Respondent, v. John Malcolm MARSHALL, Appellant. |
| Court | Washington Court of Appeals |
Charles K. Wiggins, Malcolm L. Edwards, Edwards & Barbieri, Michael L. Cohen, Cohen, Andrews & Keegan, P. S., Seattle, for appellant.
Gene S. Anderson, Deputy Pros. Atty., Seattle, for respondent.
John Malcolm Marshall was convicted at jury trial of one count of grand larceny and three counts of first-degree forgery. We affirm the larceny conviction and reverse the forgery convictions.
Marshall, a registered pharmacist, operated a retail pharmacy in Seattle. As part of his business, he filled Medicaid prescriptions for about 250 customers. Pharmacists receive reimbursement from the State for these prescriptions by submitting reimbursement forms to the Department of Social & Health Services (DSHS). Each form covers a single prescription for a single patient and requires the pharmacist's signature. Based on the results of a DSHS investigation, Marshall was charged with one count of larceny and seven counts of first-degree forgery for submitting over 300 allegedly fraudulent reimbursement forms.
Marshall's defense was lack of criminal intent. He did not deny submitting the forms, but claimed that any discrepancies were due to clerical error. He introduced a number of character witnesses and sought to introduce evidence that the prescription records of most pharmacies and physicians were inaccurate. The latter evidence was refused.
Marshall's appeal raises the following issues: (1) whether his conduct was legally sufficient to constitute forgery, (2) whether the jury was properly instructed, and (3) whether the trial judge erred on certain evidentiary rulings.
Marshall's first contention is that his conduct was legally insufficient to constitute forgery under former RCW 9.44.010 and RCW 9.44.020. We agree.
Forgery requires a false making, not just a false representation.
Where the "falsity lies in the representation of facts, not in the genuineness of execution," it is not forgery.
Gilbert v. United States, 370 U.S. 650, 658, 82 S.Ct. 1399, 1404, 8 L.Ed.2d 750 (1962). The Washington Supreme Court has stated that "forgery cannot be charged if the accused signs or uses his own true or actual name." State v. Lutes, 38 Wash.2d 475, 480, 230 P.2d 786, 789 (1951).
In Dexter Horton Nat'l Bank v. United States Fidelity & Guar. Co., 149 Wash. 343, 345, 270 P. 799 (1928), one H. N. Howe, an employee of Crenshaw & Bloxom, had endorsed without authority to do so a check payable to Crenshaw & Bloxom as follows: "Crenshaw & Bloxom, H. N. Howe, Cashier." The Supreme Court held at 346-47, 270 P. at 801 that the endorsement was not a forgery:
The New Standard Dictionary (edition of 1920) contains the following definition of the word "forgery:"
"The act of falsely making or materially altering, with intent to defraud, any writing which, if genuine, might be of legal efficacy or the foundation of a legal liability."
This definition excludes a genuine writing, that is, a writing which is just exactly what it purports to be. It may be a false writing, in that it either directly or by inference states a lie, but it is at least what on its face it seems. So it is with the words endorsed by Howe upon Crenshaw & Bloxom's checks, these words inferentially state an untruth, in that they imply that Howe had authority to endorse his employer's name to the checks so endorsed and receive the proceeds thereof; but, while the endorsement thus inferentially contains a false statement of fact and was made for an unlawful purpose, still...
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...Barnes argues that the summary was not admissible without a showing that the source documents were admissible. State v. Marshall, 25 Wash.App. 240, 243, 606 P.2d 278 (1980), review denied, 95 Wash.2d 1005 (1981); State v. Kane, 23 Wash.App. 107, 110-11, 594 P.2d 1357 (1979). He claims that ......
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