FORGERY IN THE SECOND DEGREE
(UTTERING AN 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, issuing/selling/pledging/(causing to be issued/sold/pledged);
Third, by an officer/agent of a/an corporation/association;
Fourth, of a false bond/(evidence of debt) of the corporation/association.
Statutory Authority: 21 O.S. 1991, § 1582.
The crimes created by sections 1577, 1580, 1581, 1582, 1587, 1588, and 1592, classified under "Forgery in the second degree sale or exchange - uttering," are distinguishable from the crimes for which instructions have been given under previous forgery groupings. Under the previous forgery groupings, the conduct punished relates to making the forged instrument or counterfeited coin. The conduct prohibited by the crimes under the present grouping relates to selling, exchanging, delivering, receiving, offering, or publishing the forged instrument or counterfeit coin, regardless of whether the person doing these acts was the creator or maker of the forgery or the counterfeit. A case construing section 1577 clearly holds that "making" is not an element of the offense under section 1577, and that the crime is complete when the person passes or exchanges the instrument. Acuff v. State, 283 P.2d 856 (Okl. Cr. 1955). Another case under section 1592 also makes it clear that uttering a forged instrument is a separate and distinct offense from the crime of making the false instrument. Burns v. State, 72 Okl. Cr. 409, 117 P.2d 144 (1941). Hence, the crimes under the present grouping are not lesser included offenses of "classic" forgery under the previous groupings.
Section 1592 uses the language "utter," which the Commission has translated into "offer" for purposes of the instruction. "Offer" is a more common word, and the Court of Criminal Appeals has defined "utter" to mean "offer as genuine" under a similar statute. Hill v. State, 266 P.2d 979 (Okl. Cr. 1954), (construing 63 O.S. 1951, § 417 (repealed 1971)).
The third element of the section 1577 crime indicates that the sale, exchange, or offer of the false instrument must be for consideration. The Court of Criminal Appeals has interpreted consideration broadly to include past consideration and forbearance from taking legal action to collect a debt. Wilborn v. State, 26 Okl. Cr. 437, 224 P. 214 (1924). The definition of "consideration" for section 1577 should be contrasted with the definition of "property" or "valuable thing" under the false-pretense statutes, where the court has held that past consideration is not property or a valuable thing. Thus, giving a valid but worthless check for a past debt does not constitute the crime of false pretense. Foster v. State, 15 Okl. Cr. 216, 175 P. 944 (1918); Jones v. State, 9 Okl. Cr. 621, 132 P. 914 (1913).
The fourth and fifth elements of section 1577 and the second and third elements of section 1592 indicate that the defendant must know that the instrument he sells, exchanges, or offers is a forged instrument or a counterfeit coin. Hence, the instrument or coin must be an instrument or coin that is nongenuine, has legal significance, and is not void on its face. If the instrument or coin is genuine but contains lies, if the instrument or coin does not affect legal rights, or if the instrument or coin is void on its face, the instrument or coin would not be a subject of forgery. Jones v. State, 69 Okl. Cr. 244, 101 P.2d 860 (1940); Moss v. Arnold, 63 Okl. Cr. 343, 75 P.2d 491 (1938). Refer also to the cases cited on this point in the discussion of "classic" forgery under the previous groupings.
It is not necessary for the prosecution to allege or to prove any particular person as the target of the sale, exchange, or offer, nor any particular person as the party to be defrauded. Burns, supra; Snider v. State, 71 Okl. Cr. 98, 108 P.2d 552 (1940). Nor is it necessary that the defendant have obtained anything, so long as the defendant offered the false instrument as genuine (§ 1592), or for consideration (§ 1577). Dickerson v. State, 74 Okl. Cr. 229, 124 P.2d 750 (1942). Finally, it is not a defense that the defendant intended to pay the false instrument later.
Only sections 1577 and 1592 have been construed with regard to the sale or exchange, or the uttering crimes. Sections 1580, 1581, 1582, 1587, and 1588 have not been discussed, although instructions have been drafted for these statutes.