(dissenting).
{21} I respectfully dissent. I believe a fundamental aspect of this case, which the majority opinion does not address, is the interface between commercial paper and criminal law. Thus my principal disagreement with the majority is my belief that the “effect” meant in UJI 14-1643 NMRA 2002 is not the legal effect considering only how Defendant could have affected the negotiability of the traveler’s check as a matter of the law of commercial paper. Rather, I believe the effect that is meant is bound up in the fact of Defendant’s act of alteration, whereby the check appeared to be made to his order. This act, combined with Defendant’s intent, was “falsely altering ... any part of [a] writing purporting to have legal efficacy with intent to injure or defraud.” See NMSA 1978, § 30-16-10(A) (1963).
{22} Contrary to the Majority, I do not believe this case and State v. Herrera, 2001-NMCA-007, 130 N.M. 85, 18 P.3d 326, are on point. The majority categorizes Herrera and this case together on the basis of the fact that under the law of commercial paper, the effect of the check was unchanged by the act of the defendant. This is because the “pay to the Order of’ line where Defendant signed the traveler’s check is deemed by the Majority to be for the “mere convenience” of the parties, Defendant’s signing his name there having no effect. The Majority’s authority for this position is Professor Hawkland (4 William D. Hawkland & Lary Lawrence, Uniform Commercial Code Series § 3-104:17); however, no further authority is cited by Hawkland and research has shown that this treatise has never been very widely relied on in the case law for this point. I would treat the person whose name appears on this line of the check as a payee who is in the same shoes as the payee on an ordinary cheek. I believe this is in the interest of 1) bringing the operation of traveler’s checks into line with the operation of other checks, and 2) greater certainty in the conduct of commercial transactions generally when the check is made out to a determinate party. I read Herrera as holding that the finder of a check made out to cash can legally negotiate the check. The effect of the document was unchanged, and remained unchanged when the defendant acted upon it. The expectation of the maker was not disrupted. In this case, Defendant was not merely taking advantage of the fortuitous status of a check that came into his hands; the check required false alteration before he could use it. It is his alteration for the purpose of using the check as a medium of exchange, not the fact that it was technically impossible for him to do so under the law of commercial paper, that is significant. Thus I believe Defendant did “in fact” alter the document. See Majority Opinion ¶ 12.
{23} The crime of forgery applies to “any writing purporting to have legal efficacy.” Section 30-16-10(A) (emphasis added). In the context of interpreting this language, the Court of Appeals has stated that “ ‘[n]o definition of forgery can be comprehensive enough to include all the crimes that may be committed by simple use of pen, paper and ink.’” State v. Nguyen, 1997-NMCA-037, ¶ 12, 123 N.M. 290, 939 P.2d 1098 (quoting Muhammad v. Commonwealth, 13 Va.App. 194, 409 S.E.2d 818, 821 (1991)). The case upon which the Court of Appeals relied .is instructive. In Muhammad, the defendant altered a stolen cheek by filling in his name in the payee line and by endorsing the check; however, the defendant left the signature line on the front of the check blank. 409 S.E.2d at 819. Similar to Defendant’s argument in the present case, the defendant in Muhammad argued “that because no signature of a drawer appeared on the check, the check did not meet ‘the legal efficacy’ test.” Id. The court concluded,
The fact that a document may be so irregular that a bank would be justified in refusing payment, or that a transferee would be justified in not accepting the instrument, does not mean that the writing lacks apparent legal efficacy. A check which has been fraudulently written or altered in a manner that possibly will operate to the injury of another constitutes a forgery.
Id. (citation omitted). In this case, Defendant’s alteration of the travelers check gave it “a sufficient appearance of genuineness that it possibly may operate to the injury of another.” Id. (quoted authority and quotation marks omitted). As a result, the travelers check purported to have legal efficacy within the meaning of Section 30-16-10(A).
{24} The effect of the check in the instant case was changed with Defendant’s act in that the check now was purportedly to the order of Defendant, even without the intermediate step of a countersigning. Thus this is an even more egregious case than State v. Smith, 95 N.M. 432, 622 P.2d 1052 (Ct.App.1981), where the defendant possessed bearer paper but, with an intent to defraud, caused the name of a specific payee to be written in. Here, Defendant took order paper and altered it to his own order, without any plausible argument that he was properly in possession of bearer paper and had merely indorsed it.
{25} For these reasons I would affirm the Court of Appeals.
I CONCUR: PATRICIO M. SERNA, Chief Justice.