APPEAL from the Circuit Court of St. Clair County; the Hon.
KENNETH J. JUEN, Judge, presiding.
MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Defendant, Glen Reynolds, was tried by jury in the Circuit Court of St. Clair County on an indictment charging him with forgery. He was convicted and received a sentence of four years imprisonment.
The evidence at trial shows that on August 19, 1978, at approximately 1:30 p.m., defendant entered Gordon's Jewelers, a store located in the St. Clair Square shopping center in Fairview Heights, Illinois, and requested that a clerk show him some rings. He viewed several rings over a five-minute time span and selected one valued at $395. He indicated that he wished to purchase the ring by credit card and produced a VISA card bearing the name Walter Salsman. The clerk wrote up the sale on a counter sales slip as well as on a VISA sales draft which she presented to the credit manager for approval. She then left the store and went to lunch.
The credit manager asked defendant to sign the VISA sales draft after it was imprinted with the card. Defendant wrote the first four letters of the name displayed on the card, paused momentarily, and then continued with the rest of the signature. Since the transaction was for an amount exceeding $50, the credit manager telephoned VISA to obtain a credit check on the account number displayed on the card. While on the telephone with a VISA representative pending the credit check, the credit manager asked defendant for additional identification because her suspicion had been aroused due to his hesitancy in signing the draft. Defendant responded that he was carrying no driver's license, but he did produce two other credit cards bearing the same name as that on the VISA card, Walter Salsman. The credit manager compared the signatures on the other two cards with the signature on the VISA draft. The VISA card was not used in the handwriting comparison because it was unsigned. The credit manager noticed that the signature on the draft differed markedly from those on the other credit cards. The disparity in signatures led her to suspect that the three cards were stolen, and this suspicion was passed on to the VISA representative over the telephone. The company informed her that the card had not been reported stolen. At this point the store manager interrupted the conversation via an extension telephone and asked the credit manager if she thought the VISA card was stolen. When she replied affirmatively, the store manager called the police. Defendant was detained a few minutes on the pretext that the VISA computer was not functioning, but he then left.
A police officer responding to the call noticed defendant running up an escalator located a short distance from the jewelry store. Defendant matched the description given of the man who had attempted to make the purchase in the jewelry store. After a short chase, the officer apprehended defendant and escorted him to the store where he was identified by the credit manager. Other police officers called to the scene retraced the route defendant used in fleeing the store and discovered several credit cards bearing the name Walter Salsman in a planter approximately 12 feet from the top of the escalator.
Defendant's conviction and sentence led to this appeal in which defendant raises the following issues: (1) whether the indictment is fatally defective where it failed to contain averments of extrinsic facts demonstrating the sales draft's apparent capacity to defraud; (2) whether the prosecuting attorney invaded the province of the jury where he argued that a credit card sales draft is, as a matter of law, a document apparently capable of defrauding; (3) whether the trial court erred by failing to give sua sponte a jury instruction defining a document apparently capable of defrauding; and (4) whether the trial court erred in denying defendant's motion in limine which sought the exclusion of evidence relating to a prior crime.
Initially, defendant asserts that the indictment is fatally defective because it does not aver extrinsic facts sufficient to demonstrate the apparent capacity of the VISA sales draft to defraud. Allegations of fact which defendant deems essential to a properly pleaded indictment are the existence of a valid credit card, the existence of a line of credit from the VISA company to the designated cardholder, and the use of such credit card by defendant. The State contends, however, that apparent capacity to defraud is evident on the face of the sales draft which is attached to the indictment and incorporated in it by reference, thereby dispensing with the need to plead extrinsic facts.
The indictment reads in pertinent part as follows:
"* * * [T]hat the said defendant, with the intent to defraud, knowingly made a document apparently capable of defrauding another, in that it purported to have been made by another, Walter Salsman, a copy of the document is attached hereto and made a part hereof by reference thereto, said document being a sales draft of the VISA Credit Card Company, dated August 19, 1978, and signed as maker, Walter Salsman, in violation of Paragraph 17-3(a)(1) Chapter 38, Illinois Revised Statutes."
The attached copy of the sales draft states, "The issuer of the card identified on this item is authorized to pay the amount as shown as TOTAL upon a proper presentation."
1 It is well settled in Illinois that in an indictment for forgery, the instrument which is the subject of the charge must show on its face an apparent capacity to defraud another; otherwise, the indictment must include averments of extrinsic facts establishing such a capacity. (People v. Dismore (1975), 33 Ill. App.3d 495, 342 N.E.2d 151; People v. Moyer (1971), 1 Ill. App.3d 245, 273 N.E.2d 210; Goodman v. People (1907), 228 Ill. 154, 81 N.E. 830.) The test for determining whether a document is apparently capable of defrauding another is whether a reasonable and ordinary person might be deceived into accepting the document as being true and genuine (People v. Kent (1976), 40 Ill. App.3d 256, 350 N.E.2d 890). In the language of section 17-3(c) of the Criminal Code, "[a] document apparently capable of defrauding another includes, but is not limited to, one by which any right, obligation or power with reference to any person or property may be created, transferred, altered or terminated." (Ill. Rev. Stat. 1977, ch. 38, par. 17-3(c). Cf. People v. Dismore; People v. Roberts (1975), 27 Ill. App.3d 489, 326 N.E.2d 116.) Thus, the document's capacity to defraud another need only be apparent, not actual. People v. Kent.
The issue of the capacity of a credit card sales slip to defraud has been addressed in People v. Roberts. The defendant in Roberts was charged with forgery arising out of his fraudulent use of a credit card to purchase gasoline. The indictment alleged that he delivered a falsely made document, a credit card sales slip, with intent to defraud. The sales slip was set out in the indictment in haec verba and attached thereto. Although defendant admitted he was not the authorized user of the card and that the signature on the slip was not that of the authorized user, he asserted on appeal that the sales slip was not an instrument capable of defrauding another. He argued that the indictment was rendered fatal by its failure to allege the existence of a valid credit card. In rejecting this argument, the court noted that the sales slip bore the name, account number and signature of the authorized card user and that a reading of the slip showed that a contract was entered into by the parties. The court found the credit card sales slip analogous to a fully completed personal check and reasoned that a charge of forging a personal check could be sustained without reference to a bankbook or other designation associating the person held out to be the maker of the check with the bank upon which the check is drawn. In discussing the analogy between a forged check and a forged gasoline credit card sales slip, the court observed that the credit card itself, like the bankbook, simply establishes that there is a line of credit. The credit card sales slip, like the check, purports to make use of that credit. The Roberts court concluded that a charge of forging a gasoline credit card sales slip could be sustained without reference to a valid credit card or line of credit between the credit card company and the pretended maker of the credit card sales slip. The Roberts court held that the gasoline credit sales slip possessed the requisite apparent capacity to defraud and that the indictment sufficiently charged defendant with the offense.
We find Roberts apposite to the instant case. Although the VISA credit card itself was unsigned, the VISA card sales draft, set forth in the indictment, like the gasoline credit card sales slip in Roberts, bears the name, account number and signature of the authorized card user. Moreover, the sales draft discloses the agreement between the parties to it by obligating the VISA company as issuer of the card to reimburse Gordon's Jewelers for the $395 item listed on the draft and, in turn, by obligating the card user to reimburse VISA company. A reasonable person could conclude under these circumstances that the sales draft is capable of defrauding. The trial court in the instant case held, as in Roberts, that it is the credit card sales slip, and not the credit card itself, that is the document capable of defrauding another. Therefore, it is of no consequence that the credit card was not signed.
Defendant relies on People v. Dismore in contending that the sales draft is mere evidence of indebtedness and not capable of defrauding. We find Dismore distinguishable from the case at bar because there the documents supporting the various forgery counts in the indictment consisted of a guest registration card, restaurant checks and a balance statement. The court found these documents to be similar to sales receipts and concluded that they were merely evidence of an indebtedness because the documents did not create, transfer, alter or terminate any right, obligation or power with respect to any person or property. The same is not true of the sales draft in the instant case. It was not merely evidence of an indebtedness. It purported to obligate the VISA company as issuer to reimburse the designated merchant for the price of the item listed on the draft. If any credit was extended by reason of defendant's criminal act, it would have been an extension of credit by Gordon's Jewelers to the VISA company and not either to defendant or to the authorized card user.
2 For the foregoing reasons, we hold that the sales draft on its face is complete and creates a legal obligation and is sufficient to support an indictment for forgery.
The second issue raised by defendant is that the prosecutor improperly invaded the province of the jury through statements made in closing argument. One assignment of ...