dissenting. The offense which Ark. Code Ann. § 5-37-207 (1987) is intended to punish is the fraudulent use of credit cards. The gravamen of that offense, I suggest, occurs when the perpetrator uses a credit card with knowledge that the card is stolen, forged, unauthorized, or even merely canceled. Thus, it is not the theft of goods or services to which the statute is directed (those offenses are dealt with under Chapter 36 of the Code), but to the wrongful or fraudulent use of credit cards. On that basis the offense is complete when the perpetrator knowingly presents the card, the merchant processes it, and a credit purchase results in reliance on the credit card.
In this case, the only thing that prevented the appellant from acquiring the tires themselves was his inability to provide identification. But that was after the credit transaction was completed and, hence, after the fact and does not relegate the offense merely to an “attempt” to violate the statute. An attempt occurs when the merchant declines, for whatever reason, the credit card purchase, or the transaction is aborted before completion.
By way of analogy, if an individual makes fraudulent use of a credit card to order goods by telephone (by which a significant percentage of credit card purchases occur), and the sale is processed and the goods mailed or shipped, under today’s holding, no offense occurs (other than an attempt) if the goods are intercepted before actual delivery is completed. Or assume the perpetrator, rather than taking the goods with him from the store, instructs the merchant to mail them to a designated address. The goods may or may not end up in the possession of the perpetrator, but in both these instances the cardholder or issuer is subject to loss because of the fraudulent use of the credit card.
There is plausible evidence that a practical reading of § 5-37-207 is exactly what the legislature intended — the Commentary points out that this section is, in substance, Model Penal Code § 224.6, which defines the offense as occurring when a person fraudulently uses a credit card, “/or the purpose of obtaining property or services,” (my emphasis) which is exactly what occurred in this case. The Commentary points out that § 224.6 imposed liability
for conduct not constituting theft of either property or services since the supplier incurs no loss. Rather, as is pointed out in a Comment to M.P.C. § 224.6, it is the issuer or cardholder who suffers damage by such transactions.
This is a new section to fill a gap in the law relating to false pretense and fraudulent practices. Sections [5-36-103 (1987)] and [5-36-104(1987)] cover theft of property or services by deception. It is doubtful whether they reach the credit card situation because the user of a stolen or canceled credit card does not obtain goods by any deception practiced upon or victimizing the seller. The seller will collect from the issuer of the credit card, because credit card issuers assume the risk of misuse of cards in order to encourage sellers to honor the cards readily. Thus it is the nondeceived issuer who is the victim of the practice.” M.P.C. § 224.6, Proposed Official Draft at 179 (1962).
I respectfully suggest that by focusing on whether the perpetrator actually obtains goods, rather than credit, the majority misconstrues the broader objective of the statute and materially limits its effect.