Opinion
No. 30218
Decided June 30, 1970.
Criminal law — Forgery — Savings withdrawal order — R. C. 2913.01 — Instruments which may be subject of forgery — Order, request, or receipt for payment of money.
1. An instrument falsely made, with intent to defraud, is a forgery, although, if it had been genuine, other steps must have been taken before the instrument would have been perfected, and these steps are not taken.
2. A savings withdrawal order is an order, receipt, or request for the payment of money, as used in the forgery statute, R. C. 2913.01.
Mr. Lee C. Falke, prosecuting attorney, and Mr. Richard Dodge, for plaintiff.
Messrs. Cooper Hunt, Mr. Carroll E. Hunt, for defendant.
Defendant by indictment has been charged with the crime of forgery predicated upon the drawing and uttering of a forged savings withdrawal order contrary to R. C. 2913.01.
By motion defendant requests the dismissal of the indictment on the following grounds:
1. That a withdrawal order is a very special kind of paper not enumerated under R. C. 2913.01; and
2. That the indictment is deficient for failure to aver that money was obtained to the prejudice of the bank.
II. The crime of forgery has been extended by statute and by judicial construction. It appears that it covers nearly every class of instruments known to the law as affecting private or public rights. It appears further that the substance of the instrument as distinguished from its form is determinative of whether it may support a charge of forgery. Evans v. State, 8 Ohio St. 197; State v. Floyd, 81 N.E. 1153; People v. Searcy, 18 Cal.Rptr. 779; Annotation, 90 A.L.R. 2d 822.
Research indicates that there is a dearth of criminal cases touching the matter of an order of withdrawal upon a savings account as being the subject of the crime of forgery. Despite this fact Ohio, as well as other jurisdictions, has recognized in civil cases that an order of withdrawal upon a savings institution may well be a forged instrument. Hough Ave. Sav. Bkg. Co. v. Anderson, 78 Ohio St. 341, 85 N.E. 498; Kummel v. Germania Sav. Bank, 127 N.Y. 488, 28 N.E. 398; Ogborn v. Bank of Am. Nat. Tr. Sav. Assc., 28 Cal.App.2d 565, 83 P.2d 44.
An instrument falsely made, with intent to defraud, is a forgery, although, if it had been genuine, other steps must have been taken before the instrument would have been perfected, and these steps are not taken. Commonwealth v. Costello, 121 Mass. 371. The Supreme Judicial Court of Massachusetts in Costello said: "So if, with this intent, it is to be or has been connected with facts, the existence of which are essential to its validity, which are merely simulated so that it would not be operative even if truly signed, because such facts had no actual existence, it is still a forgery."
R. C. 1303.01 (A) (2) (UCC 3-102) defines the word "order" as used in commercial transactions as follows: "An order is a direction to pay and must be more than an authorization or request. It must identify the person to pay with reasonable certainty. It may be addressed to one or more such persons jointly or in the alternative but not in succession."
The instrument in question is as follows:
"SAVINGS WITHDRAWAL ORDER
_____ 19 ___ $113 28/100
Received from Winters National Bank and Trust Co. Dayton, Ohio _____ Dollars
Which amount has in my presence been charged to my Pass Book _____ Number 316 79
Leona Porter"
Such withdrawal slip has the characteristics of an order, a request or a receipt for the payment of money. Such an instrument, however, although nonnegotiable, conforms to the definition of "order'" concerning commercial paper as set forth in R. C. 1303.01 (A) (2). It is more than a request or a receipt. It is a direction to the bank to give the possessor of such an order money from a designated account. Moreover, the instrument identifies itself as an order, not a request or a receipt.
In any event it appears that the statute, R. C. 2913.01, is all-inclusive and provides, among other things, that no person, with intent to defraud, shall falsely make or forge an order, a receipt, or a request for the payment of money. The savings withdrawal order is an instrument that must necessarily fall within one or more of such classes and therefore is capable of the subject of forgery within the clear intent of the statute.
III. Defendant's second ground for dismissal of the indictment is predicated on the proposition that she failed to defraud the experienced bank teller of any money. This contention is wholly without merit.
Forgery, at the common law, was considered only a species of fraud and might be committed of any writing by which another might be defrauded. Yet the distinction was marked out between forgery and fraud; and forgery was held complete, though no one was actually injured, if the tendency and intent to defraud were manifest. Hess v. State, 5 Ohio 5. This principle is embodied in the statute as part of the definition of forgery.
The essential elements of the crime of forgery are:
1. There must be a false making of an instrument.
2. There must be intent to defraud.
3. The instrument must be such as to have the possibility of prejudicing the legal rights of another.
The law is not fragile in this area as it is of no consequence whether the forged instrument be such as if genuine would be effectual to the purpose it intends, so long as there is sufficient resemblance to impose on persons of ordinary observation, though persons of experience could not be deceived by it.
IV. Defendant relies upon Clarke v. State, 8 Ohio St. 690, for aid and comfort. An examination of that case reveals that it firmly supports the proposition that if the indictment, either of itself or in connection with the extrinsic facts averred, show that the instrument, if otherwise genuine, would prejudice the rights of another, it is a forgery.
The indictment is aligned within the foregoing propositions of law and authorities and is therefore conclusive within its framework. It unquestionably presents a charge of forgery pursuant to R. C. 2913.01.
Accordingly defendant's motion to dismiss the indictment is overruled. This cause is continued for further proceedings according to law.
Motion overruled.