Albert M. Mark has been a pharmacist in Seattle since 1954 and operates two pharmacies in West Seattle. Mr. Mark provided prescription service to welfare recipients pursuant to the federal Medicaid program under an agreement with the Department of Social and Health Services (Department). As a result of findings made upon
The prosecution alleged that Mr. Mark had submitted claim forms for medications neither prescribed by a physician nor delivered to a welfare recipient. Mr. Mark's defense was that discrepancies were caused by inadvertent error and by substituting the names of acceptable drugs for nonformulary drugs actually dispensed but for which the Department would not reimburse the pharmacists. He admitted that he had listed some prescriptions which had not been authorized or delivered; but contended that this was necessary in order to obtain reimbursement for drugs actually furnished and which a computer service that he utilized had improperly rejected.
The claim forms required by the Department included a "prescription form." On this form the actual prescription was required to be reported, and there was a space marked "physician's signature." However, it was the practice of physicians to telephone many prescriptions to the pharmacist. Often, too, a prescription would be renewable. In such instances, the defendant would type or print the physician's name in the place provided for his signature. This practice was authorized by the Department. Each claim form was signed by the defendant, who represented that the facts stated thereon, including the fact of a prescription having been ordered by a physician, were true.
The trial court instructed the jury with respect to grand larceny and also with respect to forgery, as defined in RCW 9.44.010 and .020
In Dexter Horton Nat'l Bank v. United States Fid. & Guar. Co., 149 Wn. 343, 270 P. 799 (1928), it was contended that a cashier's unauthorized endorsement of a check in the name of the company, by himself as cashier, was a forgery. That was not a criminal action but rather a suit upon a policy of insurance indemnifying the bank which had cashed the check against losses sustained through payment of forged checks. Even though this court was called upon to construe the language of the policy against the indemnifier, it held that, giving the word "forgery" its ordinary dictionary meaning, the writing was exactly what it purported to be and thus was not a forgery. While the cashier had no authority to sign his company's
That is precisely the situation here, and here we deal with a criminal statute which must be strictly construed in favor of the defendant. In writing the doctors' names on his claim form, the defendant represented that they had submitted prescriptions to him, but he did not represent that the doctors themselves had signed the claim forms.
In Dexter Horton, we quoted with approval the following from the case of People v. Bendit, 111 Cal. 274, 43 P. 901 (1896):
149 Wash. at 348. Accord, State v. Marshall, 25 Wn.App. 240, 606 P.2d 278 (1980).
Thus, there is a significant distinction between a forgery and a writing falsely representing that the facts which it reports are true. Since the claim forms submitted by the defendant were exactly what they purported to be, it was error to instruct the jury that it could properly find the defendant guilty of forgery, and the Court of Appeals was incorrect in sustaining the convictions on those counts.
A number of witnesses testified to the good character and reputation of the defendant in the community. With respect to that testimony, the court instructed the jury as follows:
Instruction No. 12.
It is claimed that the court erred in not giving the petitioner's requested instruction, which added the following as a second sentence:
In support of his contention that it was reversible error to refuse his requested instruction, the defendant relies upon State v. Allen, 89 Wn.2d 651, 574 P.2d 1182 (1978). We held in that case that it was not error for the trial court to grant a new trial for having failed to give an instruction on the relevance of character evidence with respect to the issue of guilt. The requested instruction in that case had included the sentence proposed by the defendant in this case, and the trial court had expressed doubts about its propriety.
We held that the sentence was a correct statement of law; that the trial court would have been justified in giving the instruction. Noting the State's objection that, as worded, the instruction permitted the jury to find the defendant innocent even though it was convinced upon the other evidence that he was guilty, we said that the court would have been justified in a sentence to accommodate that objection. In the course of the opinion, we cited State v. Cushing, 17 Wn. 544, 50 P. 512 (1897), where we held that it was not error to refuse an instruction containing the sentence proposed here, where another instruction charged the jury to consider evidence of good character with the other evidence in arriving at their verdict. We found no reason to overrule that case.
An instruction is sufficient if it correctly states the law, is not misleading, and permits counsel to argue his theory of the case. State v. Dana, 73 Wn.2d 533, 439 P.2d 403 (1968).
A further contention raised in the Court of Appeals, that the lower court erred in not granting a change of venue because of pretrial publicity, is renewed here. The record shows that the prosecutor, in his affidavit of probable cause for arrest, alleged that the defendant had defrauded the State of amounts over $200,000. The evidence offered at the trial showed losses of no more than $2,300. The prosecutor participated in the publicity which the allegations in this affidavit engendered. Such participation was open to criticism, in light of principle No. 7, Bench-Bar-Press Principles and Guidelines (1974). See State v. Stiltner, 80 Wn.2d 47, 491 P.2d 1043 (1971). However, we are satisfied that the trial court did not abuse its discretion in denying a change of venue, for the reasons stated in the opinion of the Court of Appeals.
The decision of the Court of Appeals, Division One, is reversed in part, and the cause is remanded with directions
UTTER, C.J., STAFFORD, BRACHTENBACH, HOROWITZ, DOLLIVER, HICKS, and WILLIAMS, JJ., and HAMILTON, J. Pro Tem., concur.
Reconsideration denied December 2, 1980.
"The words `forge,' `forgery,' `forged,' and `forging,' shall include false making, `counterfeiting' and the alteration, erasure or obliteration of a genuine instrument in whole or in part, the false making or counterfeiting of the signature of a party or witness, real or fictitious, and the placing or connecting together with intent to defraud, of different parts or the whole of several genuine instruments." RCW 9.44.010, in pertinent part.
"Every person who, with intent to defraud, shall forge any writing or instrument ... shall be punished by imprisonment in the state penitentiary for not more than twenty years." RCW 9.44.020, in pertinent part.