FORGERY IN THE SECOND DEGREE
(EVIDENCE OF DEBT) - ELEMENTS
No person may be convicted of forgery in the second degree unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
Second, signing/(procuring to be signed);
Third, by an officer/agent of a/an corporation/association;
Fourth, of a false bond/(evidence of debt) of the corporation/association;
Fifth, with the intent to issue/sell/pledge/(cause to be issued/sold/pledged).
Statutory Authority: 21 O.S. 1991, § 1582.
Sections 1561, 1562, 1571, 1580, 1582, 1585, and 1587 create, in the opinion of the Commission, crimes similar to the common law crime of forgery. Despite the wordiness of the statutes, the Commission has endeavored to simplify the instructions through the use of as few and as ordinary words as possible, based on the common law elements of forgery. The crimes created by these sections are hereafter referred to as "classic" forgery.
Common law forgery should be contrasted with common law false pretense. For the crime of false pretense, a person must use a false representation, i.e., a lie. Forgery also involves a lie, but the lie concerns the genuineness of the document not what is stated in the document. Thus, if X were to make a deed purporting to sell Blackacre, even though X did not own Blackacre, the deed would be valid but filled with lies. X could not be convicted of forgery, though he might be convicted of false pretense if the other elements of that crime existed. If X made a deed purporting to be the deed of Y, the deed would be void because not genuine; the lie is that the deed is genuine. X could be convicted of forgery if the other elements of the crime existed. Moreover, the crime of false pretense is not committed unless the lie is believed and title to property is transferred as a result. By contrast, forgery is committed whenever the nongenuine document is created with an intent to defraud on the part of the creator, whether or not the nongenuine document is used or fools anyone into parting with property. False pretense is a crime against the ownership of property. The forgery statutes are intended to promote the genuineness of written documents. W. LaFave & A. Scott, Criminal Law § 90, at 671-71 (1972); R. Perkins, Criminal Law 339-56 (2d ed. 1969).
The first element for sections 1561, 1562, 1571, 1585, and 1587 and the second element for sections 1580 and 1582 indicate the conduct that is prohibited by these statutes when dealing with "classic" forgery. Although the statutory language varies from "forges, counterfeits or falsely alters" in sections 1561, 1562 and 1587, to "forges or counterfeits" in section 1571, and "falsely marks, alters, forges or counterfeits" in section 1585, the Commission has concluded that the word "making" more simply and clearly expresses the conduct prohibited. The word "forge" or "counterfeit" seems immediately to demand definition, especially since the crime attempted to be defined by elements is called "forgery." Thus, the Commission has decided not to use the words "forge" and "counterfeit." However, whenever the word "making" might not clearly convey to the jury the kinds of conduct prohibited, the Commission has used additional words such as "altering," "marking," and "signing," which indicate common methods of "making" a false document. As for the second element in the instructions for sections 1580 and 1582, the Commission has decided to use the words "signing" and "procuring to be signed," since these are the statutory words and they are clear, ordinary words.
The third element for sections 1580 and 1582 simply conforms the instructions to a limitation stated by the statutes. This additional element, in contrast to the other five sections under consideration, does not affect the basic thrust of sections 1580 and 1582 as "classic" forgery statutes.
The second element of sections 1561, 1562, 1571, 1585, and 1587 and the fourth element of sections 1580 and 1582 set forth the particular kinds of documents that are protected by these statutes from being forged. Section 1585(2) further provides a general protection to any document subject to forgery, which is reflected in the instruction by the phrase "a false writing having legal significance." Sweat v. State, 69 Okl. Cr. 229, 101 P.2d 648 (1940).
The second and fourth elements also delineate the limitations on the kinds of documents which can be forged. If a particular kind of document can affect legal rights and is apparently valid on its face, that document is a forgery, even though the ordinary person would not be deceived by the false document. Lacy v. State, 33 Okl. Cr. 161, 242 P. 296 (1926); Nix v. State, 20 Okl. Cr. 373, 202 P. 1042 (1922); McDonald v. State, 12 Okl. Cr. 144, 152 P. 610 (1916); Wishard v. State, 5 Okl. Cr. 610, 115 P. 796 (1911). However, a document void on its face or a document that cannot affect legal rights does not subject one to the charge of forgery. Bell v. State, 12 Okl. Cr. 453, 148 P. 402 (1916); Territory v. De Lena, 3 Okl. 573, 41 P. 618 (1895). Although the statements of the court in Bell and De Lena are correct, the precise holdings in both cases, in the opinion of the Commission, are questionable. See generally, State ex rel. Nesbitt v. Liberty Nat'l Bank and Trust Co., 414 P.2d 281 (Okl. 1966); Gooch v. Natural Gas Supply Co., 175 Okl. 153, 51 P.2d 932 (1935).
It should again be emphasized, however, that a genuine document even though it contains lies does not constitute a forged document. Thus, a valid document signed by a person in an agency capacity, although no agency exists or the authority of the agent has been exceeded, does not subject that person to a charge of forgery, although the crime of false pretense may well have been committed. Schulte v. State, 41 Okl. Cr. 173, 271 P. 1045 (1928); Ex parte Offutt, 29 Okl. Cr. 401, 234 P. 222 (1925). The second and fourth elements therefore require "a false" document.
The mens rea elements of the instructions simply conform to the statutory language. With regard to the mens rea element set forth in the third element for sections 1561, 1562, 1571, 1585 and 1587 and the fifth element of sections 1580 and 1582, it is not necessary to allege or prove that the accused had any particular person in mind as the person to defraud or to whom to sell, issue, or pledge the forged document. The mens rea element is simply an intent to defraud or an intent to sell, issue, or pledge, and no specific focus of the intent need exist. Raybourn v. State, 339 P.2d 539 (Okl. Cr. 1959).