A. Forgery consists of:
(1) falsely making or altering any signature to, or any part of, any writing purporting to have any legal efficacy with intent to injure or defraud; or
(2) knowingly issuing or transferring a forged writing with intent to injure or defraud.
B. Whoever commits forgery when there is no quantifiable damage or when the damage is two thousand five hundred dollars ($2,500) or less is guilty of a fourth degree felony.
C. Whoever commits forgery when the damage is over two thousand five hundred dollars ($2,500) but not more than twenty thousand dollars ($20,000) is guilty of a third degree felony.
D. Regardless of value, whoever commits forgery of a will, codicil, trust instrument, deed, mortgage, lien or any other instrument affecting title to real property is guilty of a third degree felony.
E. Whoever commits forgery when the damage is over twenty thousand dollars ($20,000) is guilty of a second degree felony.
History: 1953 Comp., § 40A-16-9, enacted by Laws 1963, ch. 303, § 16-9; 2006, ch. 29, § 6.
ANNOTATIONSCross references. — For forgery of lottery ticket, see 6-24-31 NMSA 1978.
For forgery of credit card, see 30-16-31 NMSA 1978.
The 2006 amendment, effective July 1, 2006, added Subsection B to provide that if the quantifiable damage is $2,500 or less the crime is a fourth degree felony; added Subsection C to provide that if the damages is more than $2,500 but less than $20,000, the crime is a third degree felony; added Subsection D to provide that regardless of value whoever commits forgery of a will, codicil, trust instrument, deed, mortgage, lien or other instrument affecting title to real property is guilty of a third degree felony; and added Subsection E to provide that if the damage is more than $20,000, the crime is a second degree felony.
I. GENERAL CONSIDERATION.
Request for false notations. — Although the defendant admittedly told the maker of the checks to put false notations on them indicating that the defendant received the checks in the course of his employment, rather than for personal goods and services, which represented a misrepresentation upon the face of the checks that cast doubt on his general truthfulness and moral character, the notations did not support a logical inference that petitioner knew the checks were forged, since the purpose of the notations was to facilitate cashing the third-party checks, and they served the same purpose regardless of whether the checks were good or were forged. Stallings v. Tansy, 28 F.3d 1018 (10th Cir. 1994).
Writing one's true name in payee line. — Defendant's alteration of a traveler's check by writing his name in the second payee line after the rightful owner had signed the first payee line did not alter the legal effect of the traveler's check. Any subsequent holder of the check should have known that it was not negotiable. Thus, defendant did not commit forgery. State v. Carbajal, 2002-NMSC-019, 132 N.M. 326, 48 P.3d 64.
Physical act not always a transfer. — It is possible to have a physical act which is an attempt to transfer one's interest but to have such an attempt thwarted at some stage of perpetration. State v. Tooke, 1970-NMCA-068, 81 N.M. 618, 471 P.2d 188, overruled on other grounds by State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.
Presentation of check a complete transfer. — Where defendant presented a forged check to a bank teller for cashing, fact that the teller, somewhat suspicious, took the check to her supervisor, whereupon the police were called and defendant was arrested, did not convert the crime into an attempt, since the transfer of interest by the defendant had already occurred; the fact that defendant received nothing and that there was no injury or loss was immaterial. State v. Linam, 1977-NMCA-082, 90 N.M. 729, 568 P.2d 255, cert. denied, 91 N.M. 3, 569 P.2d 413, overruled on other grounds by, State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.
Signing brother's name to traffic citation. — Motorist who gave officer brother's name and signed brother's name to three traffic citations could be prosecuted for forgery; there was no requirement under the forgery laws that he intended to injure or defraud his brother or that he actually succeed in injuring or defrauding someone. State v. Wasson, 1998-NMCA-087, 125 N.M. 656, 964 P.2d 820, cert. denied, 125 N.M. 322, 961 P.2d 167.
Endorsement of own name without authorization not forgery. — Where defendant endorsed or caused his name to be endorsed to a check, this was not a false endorsement, only an endorsement without authorization; and, thus, not forgery as defined in this section. State v. Deutsch, 1985-NMCA-123, 103 N.M. 752, 713 P.2d 1008, cert. denied, 103 N.M. 740, 713 P.2d 556, and cert. denied, 476 U.S. 1183, 106 S. Ct. 2918, 91 L. Ed. 2d 547 (1986).
Consecutive sentences proper. — Trial court did not err in imposing consecutive sentences on three counts of forgery, since the common law gave trial courts the discretion to make sentences consecutive or concurrent. State v. Crouch, 1965-NMSC-131, 75 N.M. 533, 407 P.2d 671.
If defendant assumes name and identity of deceased person, goes into the military and obtains identification under his assumed name, uses the identification to open a checking account, and then writes and signs checks under his assumed name and tenders them to various stores in return for valuable merchandise, such acts do not purport to be those of another and therefore forgery has not been committed. State v. Cook, 1979-NMCA-070, 93 N.M. 91, 596 P.2d 860.
Unauthorized alteration of instrument. — Unauthorized alteration of a genuine instrument, of the kind contemplated by the statute, with the requisite fraudulent intent, is forgery under this section. State v. Cowley, 1968-NMCA-011, 79 N.M. 49, 439 P.2d 567, cert. denied, 79 N.M. 98, 440 P.2d 136.
Where defendant came into possession of a check validly signed (such that it was bearer paper) but not filled in, his unauthorized filling in of the blank spaces of the check was an alteration within the purview of the forgery statute. State v. Smith, 1981-NMCA-003, 95 N.M. 432, 622 P.2d 1052.
Alteration of invoice. — Unauthorized addition to the invoice of items not purchased by the customer and a change of the amount which the customer had directed to be charged to his account constituted an alteration of the instrument within forgery offense. State v. Cowley, 1968-NMCA-011, 79 N.M. 49, 439 P.2d 567, cert. denied, 79 N.M. 98, 440 P.2d 136.
II. ELEMENTS.
A. IN GENERAL.
Elements. — Both knowledge and intent are essential elements of forgery. State v. Morales, 2000-NMCA-046, 129 N.M. 141, 2 P.3d 878, cert. denied, 129 N.M. 207, 4 P.3d 35.
Signing documents with a false name is not a forgery when the signatory has assumed the name as his own identity and when the signed document only imposes liability on the person signing it. State v. Sandoval, 2007-NMCA-103, 142 N.M. 412, 166 P.3d 473, cert. quashed, 2008-NMCERT-004, 144 N.M. 49, 183 P.3d 934.
Elements of offense. — A forgery is completed when a defendant possessing the requisite intent: (1) falsely makes or alters a writing which purports to have legal efficacy; (2) physically delivers a forged writing; or (3) passes an interest in a forged writing. State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.
"Issuing" and "transferring". — The terms "issuing" and "transferring" encompass a delivery to one who is a holder with the passing of interests from one to another. State v. Tooke, 1970-NMCA-068, 81 N.M. 618, 471 P.2d 188, overruled on other grounds by State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.
A defendant may issue or transfer a forged writing either by a physical delivery of the forged instrument for action by a third party or by passing an interest in the forged instrument to a third party. State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.
A defendant issues a forged writing when he or she knowingly physically delivers the false instrument, offers the false instrument, or otherwise makes the false instrument available for action. State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.
A defendant transfers a forged writing when he or she knowingly conveys an interest contained in the false instrument. For instance, a stock certificate may be forged to indicate a false owner. State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.
Each forged instrument a separate offense. — This section makes each act of forgery, each forged instrument, a separate offense. State v. Baca, 1997-NMSC-018, 123 N.M. 124, 934 P.2d 1053.
B. LEGAL EFFICACY.
Legal efficacy of doctor's note and order for tests. — A doctor's note and order for diagnostic tests that were used to create an excuse for the defendant's non-appearance at a court-ordered appointment are not instruments purporting to have legal efficacy and cannot be made the foundation for a forgery conviction. State v. Scott, 2008-NMCA-075, 144 N.M. 231, 185 P.3d 1081, cert. denied, 2008-NMCERT-004, 144 N.M. 47, 183 P.3d 932.
Non-commercial documents. — A non-commercial document purports to have legal efficacy if it is a document required by law to be filed or recorded or necessary or convenient to the discharge of a public official's duties and if it is an instrument which upon its face could be made the foundation of liability and if it is an instrument good and valid for the purpose for which it was created. State v. Martinez, 2008-NMCA-058, 144 N.M. 50, 183 P.3d 935, cert. denied, 2008-NMCERT-003, 143 N.M. 682, 180 P.3d 1181.
The act of signing an intake fingerprint card with an assumed name when being booked into jail constitutes forgery. State v. Martinez, 2008-NMCA-058, 144 N.M. 50, 183 P.3d 935, cert. denied, 2008-NMCERT-003, 143 N.M. 682, 180 P.3d 1181.
An employment application lacks legal efficacy. — State v. Sandoval, 2007-NMCA-103, 142 N.M. 412, 166 P.3d 473, cert. quashed, 2008-NMCERT-004, 144 N.M. 49, 183 P.3d 934.
Employment eligibility verification forms, known as Form I-9; W-4 forms; social security cards; and resident alien cards have legal efficacy. State v. Sandoval, 2007-NMCA-103, 142 N.M. 412, 166 P.3d 473, cert. quashed, 2008-NMCERT-004, 144 N.M. 49, 183 P.3d 934.
Phrase not unconstitutionally vague. — Phrase "legal efficacy" as applied in forgery statute to a writing is not so vague and uncertain in meaning as to offend constitutional requirements of certainty as it means an instrument which upon its face could be made the foundation of liability or an instrument good and valid for the purpose for which it was created. State v. Cowley, 1968-NMCA-011, 79 N.M. 49, 439 P.2d 567, cert. denied, 79 N.M. 98, 440 P.2d 136.
Objects of forgery. — Bingo cards purport to have legal efficacy which can be the object of a forgery. State v. Nguyen, 1997-NMCA-037, 123 N.M. 290, 939 P.2d 1098.
Legal efficacy is an essential element of the forgery offense and a purely legal issue. State v. Cearley, 2004-NMCA-079, 135 N.M. 710, 92 P.3d 1284, cert. quashed, 2005-NMCERT-007, 137 N.M. 280, 110 P.3d 506.
Interpretation of legal efficacy requirement that would expand forgery to encompass the falsification or alteration of any item with potential evidentiary value is not supported. State v. Cearley, 2004-NMCA-079, 135 N.M. 710, 92 P.3d 1284, cert. quashed, 2005-NMCERT-007, 137 N.M. 280, 110 P.3d 506.
The element of forgery requiring that the defendant has falsely made or altered an instrument purporting to have legal efficacy should not be expanded to include instances where the sole legal value of the instrument is its potential use as evidence. State v. Cearley, 2004-NMCA-079, 135 N.M. 710, 92 P.3d 1284, cert. quashed, 2005-NMCERT-007, 137 N.M. 280, 110 P.3d 506.
Inauthentic document that has been presented to opposing counsel during discovery in civil matter and that has no legal efficacy apart from its potential evidentiary value cannot be the subject of a forgery prosecution. State v. Cearley, 2004-NMCA-079, 135 N.M. 710, 92 P.3d 1284, cert. quashed, 2005-NMCERT-007, 137 N.M. 280, 110 P.3d 506.
"Legal efficacy" of postdated checks. — Where the forged writing involved an endorsement made or attempted of the name of the payee, the checks, although postdated, upon their face possessed sufficient legal efficacy to defraud and were properly the subject of forgery. State v. Lopez, 1969-NMCA-115, 81 N.M. 107, 464 P.2d 23, cert. denied, 81 N.M. 140, 464 P.2d 559 (1970), overruled on other grounds by State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.
Changing legal effect of check. — Where defendant found a check written out to "Cash" and, when he presented the check to a credit union teller to cash it, he added his name on the payee line next to "Cash," and endorsed the check, his actions did not change the legal effect of the check from a bearer instrument into an order instrument under 55-3-109 NMSA 1978, and he did not commit the crime of forgery. State v. Herrera, 2001-NMCA-007, 130 N.M. 85, 18 P.3d 326, cert. denied, 130 N.M. 153, 20 P.3d 810.
"Legal efficacy" of receipts. — Documents consisting of a receipt for money purporting to show that defendant had paid cash to the immigration and naturalization service (INS) as a processing fee for immigration applications and a return receipt from the United States postal service indicating INS had received the applications were "of legal efficacy" as required by this section. State v. Torres, 2000-NMCA-038, 129 N.M. 51, 1 P.3d 433, cert. denied, 129 N.M. 208, 4 P.3d 36.
Non-carbon records of checks do not purport to have legal efficacy in and of themselves. State v. Cearley, 2004-NMCA-079, 135 N.M. 710, 92 P.3d 1284, cert. quashed, 2005-NMCERT-007, 137 N.M. 280, 110 P.3d 506.
C. INTENT.
Intent. — According to the forgery statute, the appropriate mens rea is that the defendant have actual knowledge that the document is a forgery. State v. Garvin, 2005-NMCA-107, 138 N.M. 164, 117 P.3d 970, cert. denied, 2005-NMCERT-008, 138 N.M. 328, 119 P.3d 1265.
Acceptance of forged instrument is unnecessary to complete the crime of forgery. State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.
Gain or loss not required. — Forgery is complete when the false instrument is issued or transferred with the requisite intent, regardless of its acceptance. The forgery statute does not require that the defendant gain, or that the prospective victim experience a loss or injury to complete the crime. State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.
One commits forgery when he makes up check (assuming the requisite knowledge and intent), whether he or someone else places a false signature on it. State v. Saavedra, 1979-NMCA-096, 93 N.M. 242, 599 P.2d 395.
Section requires intent to injure or defraud. State v. Thurman, 1975-NMCA-049, 88 N.M. 31, 536 P.2d 1087, cert. denied, 88 N.M. 29, 536 P.2d 1085, overruled on other grounds by State v. Ellenberger, 1981-NMSC-056, 96 N.M. 287, 629 P.2d 1216.
Intent to injure in general sufficient. — General intent to injure or defraud was sufficient for conviction of forgery; it was not necessary to allege or prove intent to injure or defraud a particular person. State v. Smith, 1927-NMSC-012, 32 N.M. 191, 252 P. 1003.
Actual injury not required. — For there to be an intent to defraud, an injury or loss need not have actually resulted and for such an intent it is immaterial that no one was in fact deceived, or that the defendant did not intend to or did not make any financial gain as it is sufficient if the intent was to defraud any person on whom the counterfeit is passed. State v. Nation, 1973-NMCA-087, 85 N.M. 291, 511 P.2d 777.
Sufficient evidence of knowledge and intent. — Where defendant successfully cashed a check ostensibly signed by defendant's parent on the parent's closed account; when defendant later attempted to cash another check on the same account at the same store, when defendant learned that the police had been called, defendant ran out of the store and entered a waiting car behind the store; and defendant's parent testified that the parent had not authorized defendant to sign checks on the closed account, the evidence was to establish knowledge and intent elements for forgery. State v. Morrales, 2000-NMCA-046, 129 N.M. 141, 2 P.3d 878, cert. denied, 129 N.M. 207, 4 P.3d 35.
Intent to injure or defraud. — The crime of forgery was completed when the false making of the signature with intent to injure or defraud had been accomplished, and an injury or loss need not actually have resulted. State v. Weber, 1966-NMSC-164, 76 N.M. 636, 417 P.2d 444.
III. INDICTMENT AND INFORMATION.
Severance. — Failure to sever two counts of forgery arising from two separate incidents involving alteration of bingo cards did not prejudice the defendant since the evidence of the two offenses would be independently admissible in separate trials to prove the essential elements of intent and knowledge. State v. Nguyen, 1997-NMCA-037, 123 N.M. 290, 939 P.2d 1098.
Indictment sufficient. — An indictment for forgery, alleging that the act was unlawfully, falsely and feloniously done, sufficiently excluded authorization by the person whose act it purported to be. State v. Smith, 1927-NMSC-012, 32 N.M. 191, 252 P. 1003.
IV. EVIDENCE.
Circumstantial evidence of knowing forgery. — Where the state elicited circumstantial evidence of defendant's knowledge that the checks he cashed were forged, which included his failure to make arrangements to pay the merchant after being advised that the checks had not been honored, his prior felony conviction, and his admitted requesting false notations on the checks, which indicated they were given him by employers with whom the merchant was familiar, and that he did so in order to make the checks easier to cash, this was sufficient to support an inference that defendant knew the checks were forged. State v. Stallings, 1986-NMCA-086, 104 N.M. 660, 725 P.2d 1228, cert. denied, 104 N.M. 632, 725 P.2d 832.
Sufficient evidence. — Where defendant presented a check for cashing at a store; the check was drawn on the victim's business account, payable to defendant in payment for labor; the victim testified that the victim had never employed defendant or written a check to defendant for labor; and a bank employee testified that the signature on the check was not the victim's signature, the evidence was sufficient to support defendant's conviction for forgery. State v. Caldwell, 2008-NMCA-049, 143 N.M. 792, 182 P.3d 775, cert. denied, 2000-NMCERT-003, 143 N.M. 681, 180 P.3d 1180.
Evidence sufficient to find defendant signed checks. — Although the state did not offer a handwriting expert to match the signature on counterfeit traveller's checks with that of the defendant, the evidence was sufficient for the jury to find beyond a reasonable doubt that the defendant did sign several of the checks; the checks were counterfeit, a hotel room registration card for a room checked out to an accomplice in the fraud bore the defendant's signature; the defendant was identified by several of the store clerks involved as the person who had passed the counterfeit checks in purchasing items; and many of the items purchased were found in the room where the defendant stayed. State v. Rotibi, 1994-NMCA-003, 117 N.M. 108, 869 P.2d 296, cert. denied, 117 N.M. 215, 870 P.2d 753.
Proving forgery of check. — The court held that proof of forgery of a check need not include a showing that the drawee bank would not have honored it. State v. Lopez, 1969-NMCA-115, 81 N.M. 107, 464 P.2d 23, cert. denied, 81 N.M. 140, 464 P.2d 559, overruled on other grounds by State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.
Lack of account or authority. — Evidence that the company attempted to be drawn on did not have an account with the drawee bank or that the person who signed the check was not authorized to sign checks on behalf of the corporation were not elements of proof prerequisite to defendant's conviction involving a false endorsement with intent to defraud. State v. Lopez, 1969-NMCA-115, 81 N.M. 107, 464 P.2d 23, cert. denied, 81 N.M. 140, 464 P.2d 559, overruled on other grounds by State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.
Inference of nonauthorization warranted. — Representations that defendants were the persons named as payees of the checks made for the purpose of inducing the respective clerks to cash the checks, reasonably warranted the inference that defendants did not have the right to use the names of payees of the checks, and were not, in fact, such payees and that they did not have authority to endorse the checks in the names of payees. State v. Lopez, 1969-NMCA-115, 81 N.M. 107, 464 P.2d 23, cert. denied, 81 N.M. 140, 464 P.2d 559, overruled on other grounds by State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.
Substantial evidence supported forgery convictions. — Where defendant, a franchisee, wrote checks provided by franchisor payable to herself and co-defendant, neither of whom was authorized to receive these funds, in amounts totaling over $200,000, and where defendant was charged with forgery, conspiracy to commit forgery, fraud, conspiracy to commit fraud and embezzlement, and co-defendant was charged with forgery, conspiracy to commit forgery, fraud (over $2,500 but less than $20,000) and fraud (over $20,000), and where defendants claimed that substantial evidence did not support their forgery convictions because the checks and signature stamps used in the scheme were genuine and defendant endorsed the checks with her own genuine signature, there was sufficient evidence to support the forgery convictions because defendant's use of a signature stamp and the checks outside the scope of their authorization were acts which, when combined with the required intent to injure or defraud, constituted forgery. State v. Candelaria, 2019-NMCA-032, cert. denied.
Aiding and abetting check forgery. — The fact that defendant was not the person who passed an interest in forged checks did not preclude defendant's conviction under this section if the evidence of defendant's aiding and abetting of unidentified woman who actually passed the checks was sufficient. State v. Martinez, 1973-NMCA-075, 85 N.M. 198, 510 P.2d 916.
Mere presence not aiding and abetting. — The fact that defendant accompanied the forger of certain checks at the time that she cashed them was not sufficient to support a finding of aiding and abetting, for mere presence and even mental approbation, if unaccompanied by outward manifestation or expression of such approval, is insufficient. State v. Hermosillo, 1975-NMCA-113, 88 N.M. 424, 540 P.2d 1313.
Endorsing and vouching for forged check. — To be an aider or abettor to a forgery, defendant must have shared an intent to injure or defraud, and where uncontradicted evidence was that defendant vouched for and endorsed check forged by unidentified companion, such evidence, although circumstantial, was sufficient to show such intent. State v. Martinez, 1973-NMCA-075, 85 N.M. 198, 510 P.2d 916.
Guilty knowledge not shown. — Where the woman who forged signature on certain checks testified that the defendant, who drove her to two different branches of a bank in a three-hour period to cash them, and deposited them in the bank's drawer and cylinder respectively, did not know that the checks were forged, and the only other fact upon which a finding of defendant's guilty knowledge could be based was his presence in a car next to the owners at the time the checks may have been stolen, the evidence did not form a sufficient basis upon which to rest a conclusion of defendant's guilty knowledge. State v. Hermosillo, 1975-NMCA-113, 88 N.M. 424, 540 P.2d 1313.
Reasonable hypotheses of innocence. — Circumstantial evidence was insufficient to allow a finding that defendant aided forger by procuring checks for her because there were too many other explanations to account for her possession of the checks, so that the evidence was not incompatible with the innocence of the accused upon any rational theory and incapable of explanation upon any reasonable hypothesis of the defendant's innocence. State v. Hermosillo, 1975-NMCA-113, 88 N.M. 424, 540 P.2d 1313.
Check forgery substantiated. — Despite discrepancies in testimony of certain witnesses, there was sufficient corroborated and uncontradicted testimony to substantiate verdict of guilty on three counts of check forgery. State v. Crouch, 1965-NMSC-131, 75 N.M. 533, 407 P.2d 671.
No evidence of check forgery. — Where there was ample evidence that the maker of check cashed by defendant, which he claimed to have received in payment for three days of work, did not have an account in the bank on which it was drawn, but not one iota of evidence that check was a forgery, conviction of knowingly uttering a forged instrument with intent to defraud was reversed. State v. Bibbins, 1960-NMSC-006, 66 N.M. 363, 348 P.2d 484.
No basis for a charge of forgery when defendant did not make or manufacture a false document. — Where defendant was convicted of forgery, conspiracy to commit forgery, and perjury, and where the evidence presented indicated that defendant signed an affidavit of New Mexico residency, under penalty of perjury, declaring that he was a friend of a foreign national who sought a driver's license from the motor vehicle division (MVD) and that the foreign national lived with defendant in Albuquerque, when in fact, the foreign national did not live at the address as attested to by defendant in the affidavit, the evidence was insufficient to support forgery or conspiracy to commit forgery, because a forgery statute punishes those who falsely make an affidavit, whereas a perjury statute punishes those who make and certify a false affidavit; if a person includes false statements in an affidavit that the person signs under oath, that person has made and certified a false affidavit, which cannot be the basis of a forgery conviction, and defendant did not make or manufacture a false document, but used a genuine MVD affidavit form and signed it with his actual name. State v. Leong, 2017-NMCA-070, cert. denied.
Transfer of forged prescription. — Evidence that a physician's signature had been forged on one of his prescription blanks and that defendant presented this forged prescription to a pharmacist and obtained the drug identified in the prescription, was sufficient to show defendant knowingly transferred a forged prescription with an intent to injure or defraud. State v. Nation, 1973-NMCA-087, 85 N.M. 291, 511 P.2d 777.
Forging signature on assignment of title. — Falsely signing name of automobile owner to assignment of title and notarizing same, where evidence amply supported finding of intent to injure or defraud, constituted crime of forgery. State v. Weber, 1966-NMSC-164, 76 N.M. 636, 417 P.2d 444.
Intent to wrongfully deprive another. — Evidence was sufficient to support a finding of intent to wrongfully or fraudulently deprive another of a lawful right, interest or property, where car and false assignment were delivered to third-party purchaser who used same for at least nine days, vehicle was sold for less than worth and at private sale rather than public sale to which owner was entitled, and difference between amount owing and purchase price was not paid to owner; furthermore, even if it could be said that defendant, as secured party, legally took possession of car and was thus entitled to dispose of it by private sale, still he failed to give reasonable notification of the time after which sale would be made, or to account for the surplus money received from the sale. State v. Weber, 1966-NMSC-164, 76 N.M. 636, 417 P.2d 444.
Substantial evidence of intent required. — Guilty knowledge is rarely susceptible of direct and positive proof and generally can be established only through circumstantial evidence, but this does not remove the obligation to examine the evidence to determine whether there was substantial evidence to support a finding of intent. State v. Hermosillo, 1975-NMCA-113, 88 N.M. 424, 540 P.2d 1313.
Admissibility of exhibits. — Envelope containing money found in defendant's possession shortly after cashing second of two forged checks tended to throw light on the transaction, and considered with the time and distance factors involved, circumstantially connected defendant with the criminal offense. State v. Belcher, 1971-NMCA-135, 83 N.M. 130, 489 P.2d 410.
Red plastic wallet identified by witnesses as belonging to defendant, containing identification card bearing the name of the payee named in two forged checks, which was found around the corner from business where second check was cashed, was admissible, despite weakness of evidence of chain of custody after it was found and as to whether the contents were in the same condition at trial as when found; doubt concerning the exhibit would go to the weight to be accorded it. State v. Belcher, 1971-NMCA-135, 83 N.M. 130, 489 P.2d 410.
Cashier's description of contents of forged check was sufficient proof, and the state's failure to introduce the forged check at trial did not preclude a conviction for forgery. State v. Ruffins, 1990-NMSC-035, 109 N.M. 668, 789 P.2d 616.
V. INSTRUCTIONS.
Instruction regarding type of intent. — Where on appeal it was contended an error occurred for the district court to give a general intent instruction without instructing the jury that it did not apply to a specific intent crime, because the instruction substantially followed the applicable law, there was no fundamental error. State v. Gee, 2004-NMCA-042, 135 N.M. 408, 89 P.3d 80, cert. denied, 2004-NMCERT-003, 135 N.M. 321, 88 P.3d 261.
VI. DOUBLE JEOPARDY.
Double jeopardy. — A forgery offense may be subsumed within an attempted fraud offense. State v. Lee, 2009-NMCA-075, 146 N.M. 605, 213 P.3d 509, cert. denied, 2009-NMCERT-006, 146 N.M. 733, 215 P.3d 42.
Convictions for fraud and forgery may not violate double jeopardy. State v. Caldwell, 2008-NMCA-049, 143 N.M. 792, 182 P.3d 775, cert. denied, 2008-NMCERT-003, 143 N.M. 681, 180 P.3d 1180.
Where sufficient evidence exists to establish that each false signing was distinct from the others a defendant's acts are separated by sufficient indicia of distinctness to justify multiple punishments under the same statute. State v. Glascock, 2008-NMCA-006, 143 N.M. 328, 176 P.3d 317, cert. quashed, 2009-NMCERT-006, 146 N.M. 734, 215 P.3d 43.
Forgery and attempted fraud. — Where defendant was convicted for forgery and attempted fraud over $250 arising out of the unitary conduct of cashing a forged check, the additional element of the attempted fraud offense that the writing have a value over $250 was not sufficiently material to preclude the conclusion that the forgery offense was subsumed within the attempted forgery offense. State v. Lee, 2009-NMCA-075, 146 N.M. 605, 213 P.3d 509, cert. denied, 2009-NMCERT-006, 146 N.M. 733, 215 P.3d 42.
Multiple documents. — Where defendant signed multiple documents in connection with the refinancing of the marital home without his wife's permission or knowledge, the defendant's conduct was one continuous action rather than three distinct acts with respect to each closing document and constituted one act of forgery. State v. Turner, 2007-NMCA-105, 142 N.M. 460, 166 P.3d 1114, cert. denied, 2007-NMCERT-008, 142 N.M. 434, 166 P.3d 1088.
Multiple prosecutions not double jeopardy. — Where charge of violation of former law relating to passing of forged evidence of debt of government, or of banking institution, was dismissed for variance on grounds that the forged instrument was not a document evidencing an indebtedness of a banking institution, and defendant was subsequently charged and convicted of passing the same forged bill of exchange with intent to defraud in violation of statute relating to uttering of forged document, his plea of double jeopardy was without merit as for double jeopardy, the test in determining whether the offenses charged are the same is whether the facts offered in support of one charge would sustain a conviction of the other, and if either information requires the proof of facts to support a conviction which the other does not, the offenses are not the same and a plea of double jeopardy is unavailing. Owens v. Abram, 1954-NMSC-096, 58 N.M. 682, 274 P.2d 630, cert. denied, 348 U.S. 917, 75 S. Ct. 300, 99 L. Ed. 719 (1955); see also Owens v. Swope, 227 F.2d 796 (10th Cir.), cert. denied, 348 U.S. 917, 75 S. Ct. 300, 99 L. Ed. 719 (1955).
Conviction for same facts under different theories constituted double jeopardy. — Defendant's conviction on two separate counts of forgery on the same check, the only difference between the two counts being the theory of forgery charged, constituted double jeopardy. Although different subsections of this section provide for alternative means of prosecution, the legislature intended only one conviction for each forgery related to the same facts involving the same check. State v. Orgain, 1993-NMCA-006, 115 N.M. 123, 847 P.2d 1377, cert. denied, 115 N.M. 145, 848 P.2d 531.
Law reviews. — For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63 (1974).
For annual survey of New Mexico law relating to criminal law, see 12 N.M.L. Rev. 229 (1982).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 36 Am. Jur. 2d Forgery §§ 1 to 26.
Genuine making of instrument for purpose of defrauding as constituting forgery, 41 A.L.R. 229, 46 A.L.R. 1529, 51 A.L.R. 568.
Invalid instrument as subject of forgery, 174 A.L.R. 1300.
Admissibility, in forgery prosecution, of other acts of forgery, 34 A.L.R.2d 777.
Use of fictitious or assumed name, 49 A.L.R.2d 852.
Alteration of figures indicating amount of check, bill, or note without change in written words, as forgery, 64 A.L.R.2d 1029.
Fees: amount of fees allowable to examiners of questioned documents or handwriting experts for serving and testifying, 86 A.L.R.2d 1283.
Stolen money or property as subject of larceny or robbery, 89 A.L.R.2d 1435.
Credit charge or credit sales slip, signing of, 90 A.L.R.2d 822.
Procuring signature by fraud as forgery, 11 A.L.R.3d 1074.
What constitutes a public record or document within statute making falsification, forgery, mutilation, removal, or other misuse thereof an offense, 75 A.L.R.4th 1067.
37 C.J.S. Forgery §§ 1 to 42.