2008 edition - Fort Sam Houston - U.S. Army

(1) In general. Forgery may be committed either
by falsely making a writing or by knowingly uttering
a falsely made writing. There are three elements
common to both aspects of forgery: a writing falsely
made or altered; and apparent capability of the writing
as falsely made or altered to impose a legal
l i a b i l i t y o n a n o t h e r o r t o c h a n g e a n o t h e r ’ s l e g a l
rights or liabilities to that person’s prejudice; and an
intent to defraud.
(2) False. “False” refers not to the contents of the
writing or to the facts stated therein but to the making
or altering of it. Hence, forgery is not committed
by the genuine making of a false instrument even
when made with intent to defraud. A person who,
with intent to defraud, signs that person’s own signature
as the maker of a check drawn on a bank in
which that person does not have money or credit
does not commit forgery. Although the check falsely
represents the existence of the account, it is what it
purports to be, a check drawn by the actual maker,
and therefore it is not falsely made. See, however,
paragraph 49. Likewise, if a person makes a false
signature of another to an instrument, but adds the
word “by” with that person’s own signature thus
indicating authority to sign, the offense is not forgery
even if no such authority exists. False recitals
of fact in a genuine document, as an aircraft flight
report which is “padded” by the one preparing it, do
not make the writing a forgery. But see paragraph 31
concerning false official statements.
(3) Signatures. Signing the name of another to an
instrument having apparent legal efficacy without
authority and with intent to defraud is forgery as the
signature is falsely made. The distinction is that in
this case the falsely made signature purports to be
the act of one other than the actual signer. Likewise,
a forgery may be committed by a person signing that
person’s own name to an instrument. For example,
when a check payable to the order of a certain person
comes into the hands of another of the same
name, forgery is committed if, knowing the check to
be another’s, that person indorses it with that person’s
own name intending to defraud. Forgery may
also be committed by signing a fictitious name, as
when Roe makes a check payable to Roe and signs
it with a fictitious name—Doe—as drawer.
(4) Nature of writing. The writing must be one
which would, if genuine, apparently impose a legal
liability on another, as a check or promissory note,
or change that person’s legal rights or liabilities to
48.f.
that person’s prejudice, as a receipt. Some other
instruments which may be the subject of forgery are
orders for the delivery of money or goods, railroad
tickets, and military orders directing travel. A writing
falsely “made” includes an instrument that may
be partially or entirely printed, engraved, written
with a pencil, or made by photography or other
device. A writing may be falsely “made” by materially
altering an existing writing, by filling in a paper
signed in blank, or by signing an instrument already
written. With respect to the apparent legal efficacy
of the writing falsely made or altered, the writing
must appear either on its face or from extrinsic facts
to impose a legal liability on another, or to change a
legal right or liability the prejudice of another. If
under all the circumstances the instrument has neither
real nor apparent legal efficacy, there is no
forgery. Thus, the false making with intent to defraud
of an instrument affirmatively invalid on its
face is not forgery nor is the false making or altering,
with intent to defraud, of a writing which could
not impose a legal liability, as a mere letter of introduction.
However, the false making of another’s signature
on an instrument with intent to defraud is
forgery, even if there is no resemblance to the genuine
signature and the name is misspelled.
(5) Intent to defraud. See paragraph 49c(14). The
intent to defraud need not be directed toward anyone
in particular nor be for the advantage of the offender.
If is immaterial that nobody was actually
defrauded, or that no further step was made toward
carrying out the intent to defraud other than the false
making or altering of a writing.
(6) Alteration. The alteration must effect a material
change in the legal tenor of the writing. Thus, an
alteration which apparently increases, diminishes, or
discharges any obligation is material. Examples of
material alterations in the case of a promissory note
are changing the date, amount, or place of payment.
If a genuine writing has been delivered to the accused
and while in the accused’s possession is later
found to be altered, it may be inferred that the writing
was altered by the accused.
(7) Uttering. See paragraph 49c(4).
d. Lesser included offense. Article 80—attempts
e . M a x i m u m p u n i s h m e n t . D i s h o n o r a b l e d i s c h a r g e ,
forfeiture of all pay and allowances, and confinement
for 5 years.
f. Sample specifications.
IV-91