Thе appellant was convicted of transporting forged -securities in interstate commerce -in violation of the National Stolen Property Act, as amended, 18 U.S.C.A. §- 415. 1 Each of the four counts of the indictment recites that the -security transported was a certain hank check, drawn by the appellant on a hank in which he did-not have -funds or credit. The counts differ from each other only as to the dates, and amounts of the checks and the names of the payees. Appellant -waived trial byju-ry and the case was submitted to the Court on -an agreed statеment of fa-c-ts.. From a judgment of conviction on all of' the counts, this appeal was taken.
The stipulated facts with reference to-count 1, which will -serve as -a typical -example, briefly summarized, are as follows:. On January 8, 1947, at Phoenix, Arizona, •appellant drew a -chеck on a hank in Salt Lake C-ity, Utah, payable in blank, and. -cashed it tin person a-t an establishment in *311 Phoenix. He knew; that he did not have sufficient funds in or сredit with -the Salt Lake City bank to meet the check upon its presentation. The check 'bore the true signature of appellant. In due сourse of clearance and collection, it was deposited in a Phoenix bank, which placed it in the United States mail for transpоrtation to the drawee bank in Salt Lake City.
In so far as it need 'be considered here, the statute on which the conviction rests provides: “ * * * whoever with unlawful or fraudulent intent shall transport or cause to be transported in interstate or foreign commerce any falsely -made, forged, altered, or counterfeited securities, knowing the same to have been falsely made, forged, altered, or -counterfeited * * * shall be punished * *
Appellant’s sole -contention is that the checks drawn by him, a-s -related in the stipulation of facts, were not falsely made оr forged within the meaning of -the statute. 2
The-re is no -definition of either of the terms, “falsely made” or “forged,” in the National Stolen Property Act. They are to be found in many other Federal, forgery statutes whe-re, likewise, -they are not specifically defined.
3
I-t seems a reasonablе assumption that -Congress intended them to have their -common, ordinary meaning in all such -statutes including the one now under consideration. The word “fоrgery” is -commonly -defined as the false making -or -materially altering, with intent to defraud, -o-f any writing, which, if genuine, might apparently be o-f legal efficаcy or the foundation of a legal liability. 37 C.J.S., Forgery; § 1; 23 Am.Jur., Forgery, Sec. 2; Milton v. United States,
According to the foregoing definition, false making is an -essential element of forgery, where, as in the .present -case, material alteration is not involved. As the term implies, “false making” has -reference to the manner in whi-ch ne writing is m-ade or executed .rather than to its substance -or effect. A falsely -made instrument is one that is fictitious, not genuine, or in some material particular -something o-ther than it purports to be -and without -regard to the truth or falsity of the facts stated therein. By the -decisive weight o-f authority, the genuine making of a writing, which -contains false or misleading -statements is not false making o-r forgery. 37 C.J.S., Forgery, § 5; 23 Am.Jur., Forgery, Sec. 7; United States v. Moore, D. C. ,
Moreover, it has generally been held tha-t the -genuine making of a writing -for the purpose of -defrauding another is not forgеry. State v. Adcox,
Here, -appellant drew the checks on -аn existent bank -and -signed them in his ■own true name. There was nothing fictitious about them. They were exactly what they -purported t-o be, namely, writtén -requests by appellant to the -drawee bank to pay a specified sum of money to a third person -or to -his order. It -may well be said -that, by implicаtion, they falsely represented that -appellant had sufficient funds in the *312 drawee bank to pay them upon their presentation, and the facts will support an assumption that 'he intended to use them to defraud, but that does not justify classifying the .checks as “falsely made” or “forged” within the meaning of the National Stolen Property Act..
Appellee argues that the checks drawn by appellant were both falsely made аnd •forged, but the cases cited do not support that conclusion. They may logically be divided into two categories. The first consists of cаses in which ah accused was charged, under an applicable penal statute, with the making, uttering, or using of a
false
writing with intent 'to defraud. Williams v. Territory,
The second class оf cases, cited by appellee, consists of those in which Courts have held that the making of a writing in the name of a fictitious person, or under an assumed name, with intent to defraud, is forgery. State v. Wheeler, 20, Or. 192,
It is our conclusion that the facts do not show the commission of an offense against the United States for the reason that the checks, which appellant caused to be transported in interstate commerce, were not falsely made or forged.
The judgment is reversed.
Notes
Nоw See. 2314 of new 18 U.S.C.A., effective September 1, 1948.
It is not claimed that the checks were altered or counterfeited. The term “securities” is defined to include checks in the National Stolen Property Act, 18 U.S.C.A. § 414(b) (old) [new § 2311]. Appellant does not question that ho caused the cheeks to be transported in interstate commerce. See United States v. Sheridan,
For example, see 44 Stat. 830, 38 U. S.O.A. § 648, forgery of adjusted service certificates; 39 Stat. 544, 49 U.S.O.A. § 121, forgery of bills of lading for interstate shipments; 35 Stat. 1118, 18 U.S. C.A. § 272 (old) [new § 482] forgery of bills and notes of foreign banks ; 40 Stat. 227, 22 U.S.O.A. § 222 [new 18 U.S.O.A. § 1543], forgery of passports.
For discussions of the distinction between the false making of a writing and the making of a false writing, see United States v. Staats,