This case presents the question of whether forgery may be committed without an intent to injure or prejudice the rights of another. Defendant, Christine Raymo, was convicted of attempted forgery, La.R.S. 14:27, 72, and sentenced to nine months in jail. We reverse. One essential element of a forgery prosecution is proof of an intent to defraud, i.e., an intent to injure or prejudice the rights of another. The record is devoid of any evidence from which the jury reasonably could have inferred that the defendant made a false signature with such an intent.
On October 21, 1981, Christine Raymo entered Shirley's Pharmacy in Winnfield, Louisiana and presented to pharmacist Thomas Thompson a prescription form, bearing the signature of Dr. Ratnam B. Nagalla, for forty Seconal capsules, to the order of "Mary T. Hill." After asking how much it would cost to have the prescription
Forgery is defined by the criminal code in two ways:
That a general intent to defraud is an essential element of forgery is evident from the statute and the comment. Consequently, it is necessary to the offense that the offender either actively desire to defraud another or that he must have known that defrauding another was reasonably certain to result from his act or failure to act. La.R.S. 14:10. To defraud in the sense intended by the forgery definitions means to injure or prejudice the rights of another. State v. LaBorde, 120 La. 136, 45 So. 38 (1907). See W. Burdick, Law of Crimes § 663a, 551 (1946).
The forgery statute is to be distinguished from La.R.S. 40:971(B)(1)(b) which makes it unlawful for any person knowingly or intentionally to "acquire or obtain possession of a controlled dangerous substance by misrepresentation, fraud, forgery, deception or subterfuge * * *." Proof of an intent to defraud is not required in every prosecution under this section of the controlled dangerous substances law. It is possible for a jury to convict upon finding that drugs were obtained without an intent of injury or prejudice to another's right if the act was committed by misrepresentation, deception or subterfuge. If the defendant had been prosecuted and convicted for violation of the substance offense, the result on appeal undoubtedly would have been different.
Applying the forgery statute to this case, we are forced to conclude that there is no evidence in the record, even when viewed in the light most favorable to the prosecution, from which a jury could reasonably find or infer that the defendant intended to injure or prejudice the rights of anyone. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). There is no evidence that she attempted or intended to obtain either medical services from the doctor or drugs from the pharmacist without paying for them. She certainly intended to deceive the pharmacist, but she did not intend to injure or prejudice anyone's rights. Although it might be possible to conjure up a far-fetched hypothetical in which injury to a person could result from her deception, the evidence in the record does not suggest any real possibility of injury and certainly does not indicate any injury which she must have adverted to as reasonably certain to result from her act.
Our decision does not mean that, given the proper factual setting, falsification of a medical prescription could not constitute forgery under La.R.S. 14:72. If a prosecutor were faced with a case where intent to defraud could be established, he would have the option of charging the defendant with either general forgery or the more specific offense of obtaining a controlled dangerous substance through misrepresentation, fraud, forgery, deception or subterfuge. La.R.S. 40:971(B)(a)(b); see, State v. Juluke, 374 So.2d 1259 (La.1979); State v. O'Blanc, 346 So.2d 686 (La.1977). However, in a case such as the one on appeal, we cannot permit a person to be convicted of forgery without proof that she intended to prejudice the rights of another. To do so would be to read the words "with intent to defraud" out
Because the state's case was devoid of evidence of an essential element of the charged offense, i.e., an intent to defraud, defendant's conviction and sentence must be set aside, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Peoples, 383 So.2d 1006 (La.1980), regardless of how the error is brought to the attention of the reviewing court. State ex rel. Womack v. Blackburn, 393 So.2d 1216 (La.1981); Id., 1220 (Lemmon, J. concurring); cf., State v. Morris, 397 So.2d 1237, 1251 (La.1981) (on rehearing). Accordingly, we rest our decision on this ground without considering the defendant's assignments of error. Moreover, since the double jeopardy clause prevents retrial when a reversal is based on insufficiency of evidence due to the state's failure to prove an essential element of the offense, a judgment of acquittal must be entered. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); State v. Nguyen, 367 So.2d 342 (La.1979).
Accordingly, for the reasons assigned, defendant's conviction and sentence are reversed, and a judgment of acquittal is entered in her favor.
REVERSED; JUDGMENT OF ACQUITTAL RENDERED.
MARCUS and LEMMON, JJ., dissent and assign reasons.
MARCUS, Justice (dissenting).
In my view, the use of a forged prescription to obtain illegal drugs evidences an "intent to defraud." Accordingly, I respectfully dissent.
LEMMON, Justice, dissenting.
The majority places too narrow a construction on the term "intent to defraud". This court should clearly reject any suggestion that the term be limited to pecuniary matters.
One intends to defraud when one knowingly uses a false writing or signature to obtain anything of value to which one is not otherwise entitled.
The early Louisiana case of State v. Boasso, 38 La.Ann. 202 (Orleans 1886) interpreted the phrase "prejudice of rights" as something more than the definition of personal property. 38 La.Ann. at 206. However, what that "something" is has yet to be determined. Moreover, the court in Boasso was ruling upon a statute which required the intent to "injure or defraud" a person [emphasis added]. This statute is significantly different from La.R.S. 14:72, which requires an "intent to defraud." The significance of the presence of the word "injure" as part of the elements of the offense lies in the fact that "defraud" alone has commercial or business connotations, which would by its nature imply a situation involving a pecuniary matter. "Intent to injure" was added to the draft of the Model Penal Code to supplement the traditional mens rea of forgery legislation specifically for the purpose of eliminating any doubt that the subject of the intent to defraud could be something other than a matter of pecuniary concern. A.L.I. Model Penal Code, art. 224.1, Reporter's Comment 5(a).
As a consequence, Louisiana is one of the states which the drafters of the Model Penal Code categorized as having "ambiguous coverage" under its forgery statute. A.L.I. Model Penal Code, art. 224.1, Reporter's Comment 5(a), n.69. Given the facts of the present case, we find it unnecessary to resolve this ambiguity. Under either interpretation of the word "defraud," the record is devoid of any evidence by which a jury could find that Christine Raymo intended to defraud anyone.
Black's Law Dictionary (5th Ed. 1979), p. 381. [emphasis added].