§708-853 Forgery in the third degree. (1) A person commits the offense of forgery in the third degree if, with intent to defraud, the person falsely makes, completes, endorses, or alters a written instrument, or utters a forged instrument.
(2) Forgery in the third degree is a misdemeanor. [L 1972, c 9, pt of §1; am L 1988, c 155, §4; gen ch 1992]
COMMENTARY ON §§708-851 TO 708-853
As the drafters of the Model Penal Code noted, a revision of the criminal law which deals effectively with theft, fraud, attempt, and complicity diminishes the need for a separate offense of forgery. However, as in the case of the M.P.C.,
We retain forgery as a distinct offense partly because the concept is so embedded in statute and popular understanding that it would be inconvenient and unlikely that any legislature would completely abandon it, and partly in recognition of the special effectiveness of forgery as a means of undermining public confidence in important symbols of commerce, and of perpetrating large scale frauds.[1]
The Code establishes three degrees of forgery. The simple and least serious offense is forgery in the third degree, and involves the false making, completion, or alteration of any written instrument. The requisite state of mind is an "intent to defraud," which is specially defined to include knowledge that the actor is facilitating injury to the valuable interest of another, as well as intent to accomplish such injury.[2] "Written instrument" is broadly defined by §708-850(1) to include not only written or printed matter, but also coins, stamps, badges, seals, etc., which are evidence of value, right, privilege, or identification. Falsely making, falsely completing, and falsely altering a written instrument are also specifically defined in subsections 708-850(4), (5), and (6), respectively: the essential common element is that the final product falsely purports to be an authentic creation of its ostensible maker. Because truly serious forgeries are dealt with under the offenses of first or second degree forgery, forgery in the third degree is made a misdemeanor.
If the forged instrument is one which affects a legal right or interest, the offense is considered forgery in the second degree, and the sanction is increased to a class C felony. This category includes wills, deeds, contractual instruments, and generally all negotiable instruments and instruments relating to secured transactions.[3] These instruments are more stringently protected because of (1) the greater potential for individual harm which may generally result from the forgery of such instruments, and (2) the serious business and economic disruptions which would result from the undermining of public confidence in such matters.
Forgery, in any of its forms, of governmental or corporate financial issues or instruments, constitutes a class B felony. Impairment of public confidence in instruments or symbols of commerce could have disastrous effect upon governmental processes and the economy in general and clearly represents the most aggravated form of forgery. It is significant, in this regard, that such instruments were the first to be protected by the common law of forgery.[4] Moreover, it is felt that an additional danger exists since the average citizen cannot easily protect oneself against skillfully made forgeries of this kind; and professional criminals are most likely to concentrate on forging such instruments. Note that a forgery in the first degree must appear as part of a series. Thus, for example, only stocks, bonds, stamps, and securities which represent part of a larger issue fall within the definition of this offense. How many individual instruments constitute an issue is a matter left to case-by-case judicial interpretation.[5]
The Code's definition of the simple offense of forgery is nearly identical to that found in prior Hawaii law: "Forgery is the fraudulent making or altering a [sic] writing with the intent to deceive another and prejudice him in some right."[6] Moreover, Hawaii recognized two degrees of forgery. Forgery of a deed of conveyance, lease, promissory note, bill of exchange, due bill, check, order, and the like, involving a value of $100 or more, was roughly equivalent to the Code's forgery in the second degree, but drew a sentence similar to the Code's class B felony. All other forgery was forgery in the second degree and carried a sentence similar to the Code's class C felony. It is felt that the Code's gradation, solely according to the kind of instrument forged, is more indicative of the actual and potential degree of public and private harm involved. Moreover, the division of the offense into three degrees provides for more equitable treatment of forgery offenders.
Hawaii law previously provided an extraordinary penalty for repeated forgery offenses in the form of an additional sentence up to one-half the maximum allowed for last conviction.[7] Such severe treatment is rather difficult to justify rationally, and is found in neither the Model Penal Code nor the recent revisions of other states. The Code omits such selective sentencing provisions. The problem of habitual offenders is dealt with generally under chapter 706 (Disposition of Convicted Defendants).
SUPPLEMENTAL COMMENTARY ON §§708-851 TO 708-853
Act 155, Session Laws 1988, added the term "endorses" to these sections. Previously, forging a written instrument did not include false endorsements as a method of forging a written instrument; therefore, false endorsement was prosecuted as a theft. False endorsement, as a theft charge, carried a lighter sentence than forgery. The legislature felt the inclusion of false endorsements in these sections would strengthen the existing forgery laws. House Standing Committee Report No. 467-88, Senate Standing Committee Report No. 2550.
Act 243, Session Laws 1997, amended §§708-851 and 708-852 by making it an offense of forgery to fraudulently encode magnetic ink character recognition numbers on a written instrument. The legislature found that increasingly advanced technology has changed the way in which commercial paper can be handled between parties. One of the technological changes involved the use of magnetic character recognition numbers that enable scanners to quickly obtain information from the document. Changing the magnetic codes effectively tells the scanner different information than that intended, making it a forgery in fact, if not in name. However, that type of document alteration was not currently prohibited by law. The legislature found that the Act would protect parties in that type of situation. Senate Standing Committee Report No. 1551, House Standing Committee Report No. 987.
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§§708-851 To 708-853 Commentary:
1. M.P.C., Tentative Draft No. 11, comments at 80 (1960).
2. Cf. §708-800.
3. Prop. Mich. Rev. Cr. Code, comments at 266.
4. M.P.C., Tentative Draft No. 11, comments at 78-79 (1960).
5. Prop. Mich. Rev. Cr. Code, comments at 266.
6. H.R.S. §743-1.
7. Id. §743-10.
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