§708-853  Forgery in the third degree. 
(1)  A person commits the offense of forgery in the third degree if, with
intent to defraud, the person falsely makes, completes, endorses, or alters a
written instrument, or utters a forged instrument.



(2)  Forgery in the third degree is a
misdemeanor. [L 1972, c 9, pt of §1; am L 1988, c 155, §4; gen ch 1992]



 



COMMENTARY ON §§708-851 TO 853



 



  As the drafters of the Model Penal Code noted, a revision of
the criminal law which deals effectively with theft, fraud, attempt, and
complicity diminishes the need for a separate offense of forgery.  However, as
in the case of the M.P.C.,



We retain forgery as a distinct offense partly because the
concept is so embedded in statute and popular understanding that it would be inconvenient
and unlikely that any legislature would completely abandon it, and partly in
recognition of the special effectiveness of forgery as a means of undermining
public confidence in important symbols of commerce, and of perpetrating large
scale frauds.[1]



  The Code establishes three degrees of forgery.  The simple
and least serious offense is forgery in the third degree, and involves the
false making, completion, or alteration of any written instrument.  The
requisite state of mind is an "intent to defraud," which is specially
defined to include knowledge that the actor is facilitating injury to the
valuable interest of another, as well as intent to accomplish such injury.[2] 
"Written instrument" is broadly defined by §708-850(1) to include not
only written or printed matter, but also coins, stamps, badges, seals, etc.,
which are evidence of value, right, privilege, or identification.  Falsely
making, falsely completing, and falsely altering a written instrument are also
specifically defined in subsections 708-850(4), (5), and (6), respectively: 
the essential common element is that the final product falsely purports to be
an authentic creation of its ostensible maker.  Because truly serious forgeries
are dealt with under the offenses of first or second degree forgery, forgery in
the third degree is made a misdemeanor.



  If the forged instrument is one which affects a legal right
or interest, the offense is considered forgery in the second degree, and the
sanction is increased to a class C felony.  This category includes wills,
deeds, contractual instruments, and generally all negotiable instruments and
instruments relating to secured transactions.[3]  These instruments are more
stringently protected because of (1) the greater potential for individual harm
which may generally result from the forgery of such instruments, and (2) the
serious business and economic disruptions which would result from the
undermining of public confidence in such matters.



  Forgery, in any of its forms, of governmental or corporate
financial issues or instruments, constitutes a class B felony.  Impairment of
public confidence in instruments or symbols of commerce could have disastrous
effect upon governmental processes and the economy in general and clearly
represents the most aggravated form of forgery.  It is significant, in this
regard, that such instruments were the first to be protected by the common law
of forgery.[4]  Moreover, it is felt that an additional danger exists since the
average citizen cannot easily protect oneself against skillfully made forgeries
of this kind; and professional criminals are most likely to concentrate on
forging such instruments.  Note that a forgery in the first degree must appear
as part of a series.  Thus, for example, only stocks, bonds, stamps, and
securities which represent part of a larger issue fall within the definition of
this offense.  How many individual instruments constitute an issue is a matter
left to case-by-case judicial interpretation.[5]



  The Code's definition of the simple offense of forgery is
nearly identical to that found in prior Hawaii law:  "Forgery is the
fraudulent making or altering a [sic] writing with the intent to deceive
another and prejudice him in some right."[6]  Moreover, Hawaii recognized
two degrees of forgery.  Forgery of a deed of conveyance, lease, promissory
note, bill of exchange, due bill, check, order, and the like, involving a value
of $100 or more, was roughly equivalent to the Code's forgery in the second
degree, but drew a sentence similar to the Code's class B felony.  All other
forgery was forgery in the second degree and carried a sentence similar to the
Code's class C felony.  It is felt that the Code's gradation, solely according
to the kind of instrument forged, is more indicative of the actual and
potential degree of public and private harm involved.  Moreover, the division
of the offense into three degrees provides for more equitable treatment of
forgery offenders.



  Hawaii law previously provided an extraordinary penalty for
repeated forgery offenses in the form of an additional sentence up to one-half
the maximum allowed for last conviction.[7]  Such severe treatment is rather
difficult to justify rationally, and is found in neither the Model Penal Code
nor the recent revisions of other states.  The Code omits such selective
sentencing provisions.  The problem of habitual offenders is dealt with
generally under Chapter 706 (Disposition of Convicted Defendants).



 



SUPPLEMENTAL COMMENTARY ON §§708-851 TO 853



 



  Act 155, Session Laws 1988, added the term
"endorses" to these sections.  Previously, forging a written
instrument did not include false endorsements as a method of forging a written
instrument; therefore, false endorsement was prosecuted as a theft.  False
endorsement, as a theft charge, carried a lighter sentence than forgery.  The
legislature felt the inclusion of false endorsements in these sections would
strengthen the existing forgery laws.  House Standing Committee Report No.
467-88, Senate Standing Committee Report No. 2550.



  Act 243, Session Laws 1997, amended §§708-851 and 708-852 by
making it an offense of forgery to fraudulently encode magnetic ink character
recognition numbers on a written instrument.  The legislature found that
increasingly advanced technology has changed the way in which commercial paper
can be handled between parties.  One of the technological changes involved the
use of magnetic character recognition numbers that enable scanners to quickly
obtain information from the document.  Changing the magnetic codes effectively
tells the scanner different information than that intended, making it a forgery
in fact, if not in name.  However, that type of document alteration was not
currently prohibited by law.  The legislature found that the Act would protect
parties in that type of situation.  Senate Standing Committee Report No. 1551,
House Standing Committee Report No. 987.



 



__________



§§708-851 To 853 Commentary:



 



1.  M.P.C., Tentative Draft No. 11, comments at 80 (1960).



 



2.  Cf. §708-800.



 



3.  Prop. Mich. Rev. Cr. Code, comments at 266.



 



4.  M.P.C., Tentative Draft No. 11, comments at 78-79 (1960).



 



5.  Prop. Mich. Rev. Cr. Code, comments at 266.



 



6.  H.R.S. §743-1.



 



7.  Id. §743-10