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Forgery - Related Offenses

forged check uttering separate

The knowing use of forged writings has been prohibited as a separate offense at least since "uttering or publishing as true" certain forged writings was made a capital crime in 1729 (An Act for the more effectual preventing and further Punishment of Forgery, Perjury, and Subornation of Perjury, 2 Geo. 2, C. 25 (1729) (Great Britain) (repealed)). Under modern statutes, uttering is usually covered in the section dealing with forgery and carries the same maximum penalty as forgery itself. Mere possession of a forged instrument is generally not a crime until an attempt is made to use ("utter or publish") it. However, under federal law it is an offense knowingly and with fraudulent intent to transport a forged traveler's check or "security" (defined to include a check) in interstate commerce (18 U.S.C. § 2314 (1999)).

One who achieves a dishonest financial advantage by the use of a forged instrument may also be convicted of fraud, false pretenses, or theft by deception. But passing a worthless check, even when accompanied by misrepresentations or intent to defraud, is regarded only as a species of theft or false pretenses, not as uttering or forgery, so long as the checking account and signature are genuine. However, if the account does not exist or if the drawee bank or maker is fictitious, several states' laws treat the passing of the check as a separate offense or even as a form of forgery. Finally, it has often been pointed out that only a restrictive definition of writing permits any distinction to be drawn between forgery and counterfeiting.

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