United States v. Gibbons

Ferguson, Judge

(dissenting):

I dissent.

In my opinion, the separate specifications of falsely making a signature on the endorsement to the check here involved and the uttering of the same instrument on the same day are multipli-cious for sentencing purposes.

Pursuant to his plea, the accused was found guilty of stealing a Government check, in violation of Uniform Code of Military Justice, Article 121, 10 USC § 921; falsely endorsing the signature of • the payee thereon, in violation of Code, supra, Article 123, 10 USC § 923; and uttering the same check to an acceptance company, also in violation of the latter Article. Intermediate appellate authorities affirmed, and we granted review on the issue whether the specifications involving the false making of the endorsement and the uttering of the check alleged offenses separate for the purpose of sentencing the accused.

On or about September 1, 1958, accused stole the check involved from the mailbox of its payee. He retained possession of the instrument until September 4, 1958. On this date, he falsely endorsed the signature of the payee on the check and proceeded to the Southwest Accceptance Corporation. There, he presented it to the cashier, who applied a portion of the proceeds to accused’s car payment and gave him a cash balance of $65.02.

Code, supra, Article 123, provides:

“Any person subject to this chapter who, with intent to defraud—
(1) falsely makes or alters any signature to, or any part of, any writing which would if genuine, apparently impose a legal liability on *249another or change his legal right or liability to his prejudice; or
(2) utters, offers, issues, or transfers such a writing, known by him to be so made or altered;
is guilty of forgery and shall be punished as a court-martial may direct.”

[Emphasis supplied.]

It is clear to me that the quoted stat-xite, on its face, abolishes the normal ■distinction between the common-law ■crimes of forgery and uttering and provides only for the punishment of one ■offense which may be committed in two ways. United States v Redenius, 4 USCMA 161, 15 CMR 161; United States v Rosen, 9 USCMA 175, 25 CMR 437.

In United States v Redenius, supra, and United States v Johnson, 5 USCMA 297, 17 CMR 297, we were required to determine whether an accused could be punished for separate counts of desertion growing out of the same period of absence without leave in view of the different subsections of the Code, supra, Article 85, 10 USC § 885. We had no hesitancy in pointing out that the separate specifications could not be utilized by a court-martial as a ground for adjudging a greater sentence. The basis of our decision was the conclusion that Article 85 sought to punish only one ■offense — desertion—and its varying subsections merely set forth different methods of committing that delict. I point out to my brothers the similarity between the terminal language of Code, supra, Article 85, and that used in Article 123.

In United States v Rosen, supra, we were confronted with allegedly separate ■charges which are almost identical to those now confronting us. In that ease, accused was found guilty of a number •of specifications alleging violations of Code, supra, Article 132, 10 USC § 932. We held that the statute in question punished only one offense — the making of false claims against the United States — and that the numerous acts set forth therein were merely descriptive of the proscribed conduct. Of particular pertinence is our notation that the accused therein allegedly “forged the signature of H. V. Judson on military pay order number 2 Hq Co 98 (specification 8); and that for the purpose of obtaining payment of the claim he used the signature of H. V. Judson on the same military pay order which signature he knew to be false (specification 11).” United States v Rosen, supra, at page 177. We also pointed out in that case, with respect to the multiplicious nature of such charges, at page 177:

. . In our opinion, each group of four specifications relating to an individual pay order states but a single offense. Although the specifications charge violations of different subdivisions of Article 132 . . . the evidence shows that the acts ‘are not separate steps in the same transaction — they merge into one step.’ ” [Emphasis supplied.]

See also United States v Smith, 7 USCMA 102, 21 CMR 228.

Turning again to the instant case, it is quite clear that Congress sought, in Code, supra, Article 123, to provide for a single offense of forgery which might be committed in either of two ways. In the words of the presentation of the Department of Defense before the House Armed Services Committee, the Article “combines” the common-law offenses of forgery and uttering. Hearings before House Armed Services Committee on H. R. 2498, 81st Congress, 1st Session, page 1233. Thus, we are confronted with the same situation before us in United States v Rosen, supra. Moreover, it is clear that accused’s false making of the endorsement in question was not a separate step in one transaction but part of the unitary process of uttering the check for payment. In this connection, it should be noted that both the making and uttering took place with respect to the same instrument and on the same day. Accordingly, I believe that punishment should be visited upon the defendant only for one of the two specifications charged as violations of Article 123.

It is urged that our decision in United States v McClary, 10 USCMA 147, 27 CMR 221, is dispositive. In that case, we dealt with an accused who had stolen Government property, secreted it, and subsequently sold it. It may safely be *250distinguished. As was pointed out therein, at page 151:

. . Here the accused asported the property, secreted it, and then subsequently sold the same to third persons. At least a full day elapsed between the takings and disposals. It is obvious from his method of operation that he possessed dual intents —that is, an intent to steal and an intent to sell — and while they may have been formed simultaneously, the sequence of events was such that they were severable and he could have abandoned his intent to dispose of the goods after he had executed his plan to steal.” [Emphasis supplied.]

Were we faced with the issue of the separability of the charges that accused stole the check and his subsequent false dealings with it, there is no doubt that our holding in McClary, supra, would be applicable. However, we now are involved only with the accused’s disposition of the item stolen. His actions with reference to the making of the endorsement and cashing the check were colored with only one intent — that of defrauding the payee or the Government. Both the making of the payee’s signature and the uttering of the instrument were indispensable prerequisites to the execution of this single mental element. Hence, United States v McClary, supra, is simply not applicable.

It is also stated that we should heed the rule in Federal jurisdictions and hold that forging and uttering the same check are separate offenses for purposes of punishment. See Wiley v United States, 144 F2d 707 (CA 9th Cir) (1944), and Reid v Aderhold, 65 F2d 110 (CA 5th Cir) (1933). These cases, however, involve statutes substantially different from Code, supra, Article 123, and which punish forgery and uttering as separate crimes. See 18 USC § 495 and District of Columbia Code, Title 6, § 86 (1929 ed). Accordingly, Federal decisions should not control our approach to the problem. It is also worthy of note that even those courts have not always adopted the concept that the two crimes may both be used for the basis of imposing sentence. Thus, in United States v Carpenter, 151 Fed 214 (CA 9th Cir) (1907), it was stated, at page 215:

“. . . But it has been generally held that the forging and uttering a forged instrument are parts of one transaction, and that, where the different counts of an indictment charge different crimes which are parts of a single transaction, the sentence based on a general verdict or plea of guilty must impose only one penalty, . . . [Citing cases.]”

I suggest to my brothers that the change in approach in the Federal courts as evidenced by the decision in United States v Carpenter, supra, and Reid v Aderhold, supra, may well be based upon changes in the Federal statutory law rather than in any concept that the offenses are basically different.

In sum, then, I am of the opinion that Code, supra, Article 123, should be construed to punish only one offense and that our decision in United States v Rosen, supra, is dispositive of the case-before us. I must, therefore, conclude that the law officer erred prejudicially when he informed the members of the court-martial that they might sentence-accused to a term of confinement not to-exceed fifteen years. In my view, the-proper limitation was ten years.

I would reverse the decision of the board of review and order a rehearing on the sentence.