Summary
In People v Shaw, 27 Mich. App. 325; 183 N.W.2d 390 (1970), lv den 385 Mich. 760 (1971), the defendant was charged with forgery of a credit card slip contrary to MCL 750.248; MSA 28.445 and was convicted following a jury trial.
Summary of this case from People v. FordOpinion
Docket No. 7,468.
Decided October 26, 1970. Leave to appeal denied July 1, 1971. 385 Mich. 760.
Appeal from Genesee, Anthony J. Mansour, J. Submitted Division 2 October 12, 1970, at Lansing. (Docket No. 7,468.) Decided October 26, 1970. Leave to appeal denied July 1, 1971. 385 Mich. 760.
Herschel Shaw was convicted of forgery. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief Assistant Prosecuting Attorney, for the people.
Gary W. Brasseur for defendant on appeal.
Defendant was charged with forgery of a certain obligatory instrument, to-wit: a Citizen's Charge-O-Matic sales slip, contrary to MCLA § 750.248 (Stat Ann 1965 Cum Supp § 28.445), and was convicted upon a jury verdict October 31, 1967.
Defendant asserts that the facts do not support a conviction under the forgery statute, but rather make out a case of unauthorized use of a credit card under CLS 1961, § 750.219a (Stat Ann 1962 Rev § 28.416[1]) and asserts that the prosecuting attorney abused his quasi-judicial discretion in proceeding under the general forgery statute, MCLA § 750.248, supra.
This statute was substantially amended by PA 1967, No 255, § 1, effective November 2, 1967, so as to no longer deal generally with the misuse of credit cards, but rather to obtaining telephone services by false practices.
It is a fundamental rule of statutory construction that when two statutes encompass the same subject matter, one being general and the other specific, the latter will control. However, that rule is not applicable here since the above mentioned statutes do not cover the same subject matter. CLS 1961, § 750.219a, supra, made it a misdemeanor to knowingly use a credit card to obtain or attempt to obtain goods, property or services, regardless of whether a forgery is committed. While defendant could have been charged under CLS 1961, § 750.219a, there is nothing in that statute to preclude his being prosecuted under the general forgery statute. See Vannerson v. State (Tex Crim, 1966), 403 S.W.2d 791; McCrory v. State (Miss, 1968), 210 So.2d 877.
A person obtaining goods through a forged sales slip and the unauthorized use of another's credit card commits several crimes, any of which he can be charged with. People v. Searcy (1962), 199 Cal.App.2d 740 ( 18 Cal.Rptr. 779, 90 ALR2d 814).
Where the specific credit card offense charged did not necessarily involve the same elements as a more general statutory prohibition, a specific credit card statute will not preclude prosecution or conviction under more general statutes. Shriver v. Graham (Okla Crim, 1961), 366 P.2d 774; McCrory v. State (Miss, 1968), 210 So.2d 877; People v. Churchill (1967), 255 Cal.App.2d 448 ( 63 Cal.Rptr. 312, 24 ALR3d 996).
At the time of the transaction involved herein, both of the foregoing statutes were available to the prosecuting attorney, and we find no abuse of discretion in his decision to proceed under the forgery statute, rather than the credit card statute, where the facts support a conviction under either.
Our decision in People v. Hester (1970), 24 Mich. App. 475, is contrary to defendant's contention that because a credit sales slip is not within the classical definition of a "writing obligatory" it cannot be the subject of forgery.
Affirmed.