In 1994 the CCA suggested that the term "fictitious credit card" as used in sec. 32.31(b)(2)of the Penal Code should be defined in the law. Olurebi, 870 S.W.2d at 62 n. 4. As best as I can tell, the legislature has failed to do so. The court also noted that a credit card obtained by a false statement (so long as issued to an existing or real person) would not fall within its definition of a fictitious credit card and thus its use was outside the ambit of 32.31. Olurebi, 870 S.W.2d at 61 n. 3. Possibly sec. 32.51 was the legislature's answer to this issue and adequately covers the conduct, but would not it still be a good idea to define "fictious". Besides, it seems to me that with the ability to obtain a card by phone or over the internet and the attendant difficulty in proving a violation of 32.51 it might be better to criminalize the actual use of the fraudulently obtained card.
I got into all of this because our suspect called up the credit card issuer and said "my name has changed from A (to whom a card had already been issued) to B (the real name of the real live suspect) , please send me a new card with B on it to my new address". And of course the issuer did and you know the rest of the story.
On a related note, anyone have any idea what "an unsigned check" as used in sec. 32.24, P.C. is intended to include? Can the check be just the blanks you get from the printer, or is it one partially filled out, just not signed by the would-be maker, or both? What is the offense for stealing and passing a signed check? My facts: person on way to bank stops at grocery and leaves the checks (he has already endorsed without restriction) in his car. By time he comes back to the parking lot his checks are gone. They turn up a few days later (having been converted to cash or merchandise by our suspect)in another town. Is this charged as theft (based on the amount of the check) or forgery (I say the suspect represented himself to be the payee/endorser at the time of utterance/passing and the endorsement had been made by another who did not authorize the authentication thereof by the theif, but I am just not sure what "authenticate" really means). Seems like it could mean "I'm here to cash this check which has been made out to me and that I have endorsed, i.e., that's my signature right there." If this conduct does not fall within the forgery statute, should the statute be amended? By the way, I think the bank can take the position it was the endorser's negligence that contributed to the loss and so as far it is concerned when the check is presented for payment it is not a forgery and the bank does not have to recredit its depositor's account or pay anything to the endorser and so on up the chain. See art. 3, subch. D of the UCC.
Martin, we all took a vote, and the results are in.
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We hope you understand and appreciate our concerns. We all have other work to do.
Now, now, John. Martin probably doesn't have anyone to talk to in Meridian. Might get kinda lonely. And as to your assertion that "we all took a vote", I find it hard to believe. We all know that you don't let your prosecutors out of their cells except to go to court. All discussions among your crew clearly take place in this forum. Since we have seen no chat...
