Our office has received several "forgery" cases (all are for amounts less than $1500) where the forged check was created by a computer and purports to be the account of a totally fictitous person or company. Nothing on the check exists in reality. I don't think it is a forgery because it doesn't purport to be tha act of "another" who did not authorize the act; because if you follow the definition of "another" to it's end point in sec. 1.07 of the penal code from "person" to "individual", it has to be a real person. Also, in an older version of the penal code, "another" used to included all persons, real or fictitious.
How do you charge these cases?--misdm. theft, criminal instrument, criminal simulation? Am I missing anything here?

[This message was edited by Admin on 05-02-02 at .]

We have had the same type of case. My recollection is that we ended up filing the case as a theft of the appropriate value ladder category.

I think we are all going to see more of these kind of cases. Unless someone else sees another charge that we can file on people who do this, I think that we should look for a legislative solution, whether by adding a new offense or by amending the forgery statute.

It has never slowed me down.

Look at the Websters definition for purports. There is no "legal" definition in Sect. 1.07 or Chapter 32. You find that it is to have the often specious apparance of being, intending or claiming ....

Then look at the statute Sect. 32.21(a)(1)(A)(i)- "... purports to be the act of another who did not authorize that act."

I break that into two issues:
1. purports to the act of another
2. who did not authorize that act.

In my opinion "purport" in the context of the statute modifies the phrase "act of another". This purported person who did this act must not have authorized it. This purported "another" is not required to be a real person - the actor must merely present the act as being one of a real person.

If there is a signature, payee or amount filled in we have data put on the check purportedly created and applied by a person. Purportedly an "individual, corporation, or association" (Sect. 1.07(38)) other than the actor (Section 1.07(5)) signed the check, filled in the amount and/or the payee. The fact that no such person exist does not mean that these entries don't purport to be the act of another.

Thus the hang up when it is a fake company, fake bank, fake check, fake everything is that one must prove a negative - that there is no such company, no such bank, no such person, no such routing number, no such account number, or whatever is made up, i.e. faked and fabricated by the forger. Proving negatives is tough, but not impossible. The burden is "beyond a reasonable doubt" - not "beyond any doubt".

Don't despair!

If purportedly drawn on a Texas company see if the Secretary of State can get you a certificate that there is no such company and never has been such a company. If State, National, or even International Company, hire a broker as an expert witness and have him wring the records and then come in and testify no such company exist. If the bank doesn't exist, get a banker to research and testify the routing number is fake or the bank doesn't exist. Then argue even if there are people in the world with the name in the signature, they can't have authorized drafting on that company's account, no one could as the company doesn't exist. Thus proving "who did not authorize the act" beyond a reasonable doubt. In rebuttal the defense must raise reasonable doubt that the fake person, fake bank, fake company does exist.

There are many flavors to this and many, many approaches ... I have suceeded when the signature is illegable. In the indictment when it says "... purports to be the act of another, to wit:" I add my best guess as to what the signature says and then the following so it appears like ..."John Jones or a person with the authority to sign the check or purported check of the tenor shown below". I phrase it differently for different cases - it depends on if the company is real or the routing number real or the account number real.

I have no reported cases from my litigation as no one has ever appealed ... they are guilty and know it after talking to me.

I look forward to your comments and corrections.

DON'T FORGET TO GET YOUR HOT CHECK PROCESSING FEE UNDER ART. 102.007(A)(1)(2)!!

If there is no real "another," then there also isn't anyone who didn't authorize the act; and isn't that the gravamen of the offense?
It's obviously a theft by deception, I'm just trying to make sure it's really not a felony before I tell the detectives to file it in county court.

Proof of a forgery is sufficient so long as you prove the defendant purported to be anyone other than himself (there are even cases where he uses his own name but purports to be another). You will not find "Mickey Mouse" but if I sign that name on a check you can still prove I had no authority to do so. Colburn, 501 S.W.2d at 682, Golden, 475 S.W.2d 273, and Wallace, 813 S.W.2d at 752. Don't let them off with misdemeanors.

Ed,

You have to prove the data on the check purports to be the act of another. That is easy even in a fake check - if there is an amount, a payee or a signature - then the actor is trying to fake someone into believe that a human with authority punched keys on a check writer, stamped a facsimile signature or even took pen to hand. If there is no payee, no amount, no signature - it probably is not forgery.

You have to prove that this human (i.e. the "another") purported to put the amount, payee or signature on the check. You have to prove that this human (i.e. we call him "another") did not authorize the putting of the payee, amount or signature on the check. If we can prove beyond a reasonable doubt that this human, i.e. "another", does not exist the the fair deduction from the evidence is that this human, i.e. another, did not authorize the act. A non-existant, fake human, we call "another", can never and will never authorize any act!! If you can show the forger came up with an imaginary human, you have shown that there was no authorization!

Burden shifts to defendant to create reasonable doubt that this human, we call "another", actually exists and they flame out under that burden.

It isn't a misdemeanor.

Stephen

[This message was edited by Stephen Hughes on 05-04-02 at .]