(dissenting). This is an original habeas corpus proceeding by petitioner, Clyde C. Stout, for his release from Ionia State Hospital, to which he was committed in 1931 by a judge of the recorder’s court for the city of Detroit pursuant to the provisions of CL 1929, § 17241, as amended by Act No 317, PA 1931, quoted in a footnote to Mr. Justice Smith’s opinion. The cited statute requires commitment to Ionia State Hospital when a person accused of any felony shall be determined, after careful inquiry, to be insane. Stout claims that the information did not properly accuse him of any felony and that, therefore, his commitment under the cited statute was and is invalid. I agree.
Stout was charged by information in the following language:
“And the said Clyde C. Stout did then and there, with intent to injure and defraud, falsely, feloniously, fraudulently indorse, write and forge upon the back of said draft or order for the payment of money *442the indorsement and signature of the payee thereof, viz.: Properties Holding Co., by C. C. Stout, without right and authority so to do, and with intent then and there to injure and defraud.”
The statute for the violation of which he was charged (chapter 284 of CL 1929, § 17048) read as follows:
“Section 1. Every person who shall falsely make, alter, forge, or counterfeit any * * * indorsement, or assignment of a bill of exchange * * * for the payment of money * * * with intent to injure or defraud any person, shall he punished by imprisonment in the State prison not more than 14 years, or in the county jail not more than 1 year.”
The prosecuting attorney, appearing for the respondent successor recorder’s court judge, and the attorney general, appearing for the respondent medical superintendent of the Ionia State Hospital, contend that the information adequately charged petitioner with having committed forgery on the theory that any unauthorized signature with intent to defraud is a forgery and, therefore, a felony if made upon an instrument described in CL 1929, § 17048.
While several of our early cases contain extremely broad language which would seem to support the position taken by respondents and by Justice Smith, this Court has never considered the precise question presented by Stout’s petition: It has, however, been considered by other courts, and just last year the precise issue was decided by the United States supreme court in a manner contrary to the contentions of the respondents. Gilbert v. United States (1962), 370 US 650 (82 S Ct 1399, 8 L ed 2d 750).
Because cases like People v. Marion, 29 Mich 31 (relied upon by the respondent judge), and People v. Van Alstine, 57 Mich 69, did not involve instruments alleged to have been forged by addition of a genuine signature which purports, wrongfully, to *443be that of an authorized agent, we need not assume that such wrongful agency indorsements would have been regarded as forgery by the Court had the issue been presented in Marion or in Van Alsiine, notwithstanding the broad general language used by the Court in each of those cases.1 In Marion, for example, at page 35, the Court, quoting from Queen v. Ritson, LR 1 CCR 200 (21 LT 437), defined forgery to include any act which fraudulently makes an instrument “ ‘purport to be that which it is not’ ”. In Van Alstine, supra, at p 73, the Court said that at common law, forgery was defined to be the “ ‘making of a false document with intent to defraud’ ”.
In Gilbert v. United States, supra, a factual situation was presented analogous to that reflected in the information charging Stout with forgery. Gilbert was an accountant who wrongfully indorsed his clients’ Federal income tax refund checks with their names and also added his own genuine signature followed by the word “trustee”. He was prosecuted for violation of 18 USC, § 495:
“Whoever falsely makes, alters, forges, or counterfeits any deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States or any officers or agents thereof, any sum of money * * * shall be fined not more than $1,000 or imprisoned not more than 10 years, or both.”
Mr. Justice Harlan, writing for the supreme court, traced the history of that statute back to 1823 and *444determined what the common-law meaning of forgery was at that time, assuming in the absence of anything in the statute to the contrary that congress must have used the word “forges” in its common-law sense. For this purpose he relied upon Regina v. White, 2 Car & K 404 (175 Eng Rep 167 [Nisi Prius, Book 6]) decided in 1847. Mr. Justice Harlan acknowledged that the case of Regina v. White was decided subsequent to the 1823 statute in which congress first made use of the concept of forgery, but he noted that in the decision of Regina v. White, the 15 judges of the English court considered the earlier English common-law authorities and unanimously concluded that “ ‘indorsing a hill of exchange under a false assumption of authority to indorse it per procuration, is not forgery, there being no false making.’ ” 370 US 650, at p 655. The supreme court concluded that forgery, within its common-law meaning as incorporated within the above-quoted Federal statute, “should not be taken to include an agency indorsement.” Gilbert, having made a purported, hut misrepresented, agency indorsement was held not to have forged the checks within the common-law meaning of that term.2
In Mr. Justice Harlan’s opinion in Gilbert v. United States, reference is made to Selvidge v. United States (CCA 10), 290 F2d 894, a 1961 decision *445of the tenth circuit court of appeals. Justice Harlan adopted the reasoning of the Selvidge Case and its •conclusion that the common-law definition of forgery •does not include an agency indorsement such as was involved in Gilbert and is involved in this case of Stout. The opinion in Selvidge v. United States adequately distinguishes the cases of Yeager v. United States (1929) 59 App DC 11 (32 F2d 402), and Quick Service Box Co. v. St. Paul Mercury Indemnity Co. (CCA 7, 1938), 95 F2d 15, both of which are relied upon by the respondent superintendent of Ionia State Hospital. 290 F2d 894 at p 896.
In this case, as in Gilbert and Selvidge, Stout was charged only with having added his genuine signature to a check so as to purport falsely to indorse the check as the agent of the payee. At most, Stout’s act was a false pretense or false representation of authority ;3 but it was not forgery as that offense was known to the common law. Nothing appears in our decisions or in the statute to indicate the legislature intended to include within the provisions of CL 1929, § 17048, quoted above, more than was included in the common-law concept of forgery.
Having concluded that petitioner is entitled to his release for the reasons above stated, I do not find it necessary to consider the other issues raised hy him in his petition. I would order his immediate release.
Even in People v. Kemp, 76 Mich 410, involving a defendant who obtained a cheek made out to a fictitious personage and indorsed it with the fictitious name and his own name, the Court did not pass on the question of whether an agency indorsement was encompassed within forgery. The information' in Kemp charged defendant only with forging the fictitious name.
The reasoning of the supreme court is equally applicable to the Michigan statute under which Stout was charged. One of the earliest Michigan antecedents of CL 1929, § 17048, was section 37 of “An act for the punishment of crimes” enacted in 1820 by the governor and judges of the Michigan territory:
“If any person shall falsely make, alter, forge or counterfeit * ** * [an] indorsement or assignment of any bill of exchange * * * with intent to prejudice, injure, damage or defraud any person * * * every such offender, shall, on conviction, be punished by fine not exceeding $300, or by solitary imprisonment, at hard labor, not exceeding 2 years, or both, at the discretion of the court, or may instead of the imprisonment, be whipped not exceeding 39 stripes on the bare back.”
The precise wording used in CL 1929, § 17048, appears in RS 1846, Chapter 155, § 1. ■
Conceivably Stout could bave been charged with commission of a felony under CL 1929, § 16916, for defrauding by false pretenses. Inasmuch as this was not done, however, he was not properly accused of a felony, and his commitment was, therefore, without statutory justification.