For affirmance in part and reversal in part -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman and Clifford and Judge Kolovsky. Opposed -- None. The opinion of the Court was delivered by Kolovsky, P.J.A.D., Temporarily Assigned.
These appeals are before us following grant, 66 N.J. 325 (1974), of cross-petitions for certification filed by defendant and the State to review the final judgment of the Appellate Division embodied in its opinion reported at 129 N.J. Super. 113.
The question presented by the State's petition is whether one who utters a false or forged credit card with intent to damage or defraud another may be prosecuted under N.J.S.A. 2A:109-1 (b), a section of the forgery statute, or whether if he uses the forged credit card to obtain goods or services on credit he may be prosecuted only under N.J.S.A. 2A:111-43, a section of the act (hereinafter refered to as the credit card act) originally enacted as L. 1968, c. 300, now N.J.S.A. 2A:111-40 through 51.
That question was one of the issues raised on defendant's appeal from his convictions at a joint jury trial of an indictment (#29-1971) charging unlawful receipt and possession of a stolen credit card, N.J.S.A. 2A:111-42 (b), and 18 indictments (#30 and 33 through 49-1971) charging
him with uttering, on 18 occasions between June 30 and July 24, 1971, a forged credit card in violation of N.J.S.A. 2A:109-1 (b). The Appellate Division ruled that "one who illegally uses a forged credit card must be prosecuted exclusively under" the credit card act and that under that act "all separate illegal uses of such a card during any six month period constitute one offense." 129 N.J. Super, at 116-117.
The primary question presented by defendant's petition for certification involves the propriety of the action taken by the Appellate Division once it had ruled that the prosecution of the offenses charged in the 18 indictments should not have been under the forgery statute.
The Appellate Division rejected defendant's argument that the trial court should have granted his motion to dismiss the 18 indictments. It ruled: (a) that the trial court should have ordered a consolidation of the 18 indictments into one indictment alleging a violation of N.J.S.A. 2A:111-43; (b) that since the State's proofs -- which the jury by its verdict found to be true -- established a violation of N.J.S.A. 2A:111-43, the 18 judgments of conviction would be molded into one judgment of conviction under one indictment, amended to allege a violation of N.J.S.A. 2A:111-43, and the other 17 judgments of conviction reversed and set aside; and (c) that the cause be remanded for resentencing both on the molded judgment of conviction and on the conviction for possession of a stolen credit card. (The sentence to State Prison originally imposed on the latter conviction was illegal because it was for a term of one year rather than for a maximum and minimum term as required by N.J.S.A. 2A:164-17.) Before the parties applied for certification, the trial court resentenced defendant, imposing consecutive terms of two to three years on the count charging unlawful receipt and possession of a credit card and on the count, as molded by the Appellate Division, charging unlawful use of a credit card.
Defendant's primary argument before us is that after his conviction-following a charge to the jury which explained
only the elements of the crime of uttering a forged instrument, N.J.S.A. 2A:109-1 (b), the offences alleged in the 18 indictments -- the Appellate Division had no power to so amend and consolidate the indictments. Defendant contends that the Appellate Division had made an impermissible "substantive change in the charge against defendant," cf. State v. Grothmann, 13 N.J. 90 (1953), by substituting an offense not found by the Grand Jury in violation of Article I, paragraph 8 of the New Jersey Constitution which provides in pertinent part:
No person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury * * *.
In view of the ultimate disposition of this appeal, we find no need to resolve the constitutional issue thus posed nor the question whether, if constitutionally permitted, the amendment thus made was authorized under our court rules and did not prejudice defendant. See generally: R. 3:7-3(a); R. 3:7-4; State v. Wines, 65 N.J. Super. 262 (App. Div. 1961), certif. den. 34 N.J. 474 (1961); State v. Bott, 53 N.J. 391, 402-403 (1969); State v. Kuske, 109 N.J. Super. 575, 584-5 (App. Div. 1970), certif. den. 56 N.J. 246 (1970); Annotation, "Indictment -- Amendment," 17 A.L.R. 3d 1181, 1239 (1968); Commonwealth v. Syren, 150 Pa. Super. 32, 27 A.2d 504 (Super. Ct. Pa. 1942); Commonwealth v. Bruce, 230 Pa. Super. 507, 326 A.2d 628 (Super. Ct. Pa. 1974).
Defendant also argues here, as he did unsuccessfully in the Appellate Division, see 129 N.J. Super. 118-119, that a number of other errors warranting reversal were committed by the trial court. We agree with the Appellate Division that there is no merit to any of these contentions.
We leave for later discussion defendant's final point, his criticism of the sentences imposed following the remand ordered by the Appellate Division, and now consider the issue raised by the State's cross-petition.
A brief summary of the proofs at the trial will be helpful. They show that a renewal Bankamericard in the name of
Albert R. Miller, bearing his account number, was mailed to him on May 19, 1971. He never received, signed or used it. Had he received it, all that would have been required to enable him to use it to obtain money, goods or services on credit would be that he sign the card on the blank line provided for his signature. Without that signature the card could not be used.
Although the card itself is used to transfer the printed name and account number of the cardholder onto the slip or receipt acknowledging that the goods or services were received and the amount charged therefor, the signature on the card is necessary to enable the one furnishing credit to compare it with the signature placed by the customer on the receipt.
On 18 occasions from June 30 through July 22, 1971, the Bankamericard bearing Miller's forged signature was used to obtain goods and services in amounts totalling $972.24 from two restaurants and two motels. On each occasion, the one presenting the card signed the name Albert R. Miller on the receipts for the goods or services furnished on credit. A handwriting expert testified that the 18 signatures were all signed by the same person.
Despite defendant's testimonial denial of any involvement, the State's direct and circumstantial evidence was more than sufficient to support the jury's finding that it was defendant who, on each occasion, had presented the credit card and had signed the name Albert R. Miller to the receipts.
Leaving aside for the moment the problem engendered by the enactment of the 1968 credit card statute, it is clear that the proofs established, as the 18 indictments had alleged, violations of N.J.S.A. 2A:109-1 (b) which, among other things, makes it a high misdemeanor (for which the maximum permissible punishment is a fine of $2000 or imprisonment for 7 years or both, N.J.S.A. 2A:85-6) to utter or publish as true, with "intent to * * * defraud any other person," any false, altered, forged or counterfeited "printed or
written instrument or indorsement, acceptance, transfer or assignment thereof."
A credit card is an instrument encompassed within the statutory language "printed or written instrument or indorsement * * * thereof." N.J.S.A. 2A:109-1(a). "Forgery 'may be committed in any writing, which, if genuine, would operate as the foundation of another's liability or the evidence of his right.' 3 Underhill, Criminal Evidence (5th ed. 1957), § 770, p. 1769." [ State v. Berko, 75 N.J. Super. 283, 290 (App. Div. 1962)]. Since indorsement of the named cardholder's signature on the credit card issued by the credit card company is an essential prerequisite to its use, uttering a credit card indorsed with such a forged signature with intent to defraud is a violation of N.J.S.A. 2A:109-1 even if that intent is not "carried out to successful accomplishment." 36 Am. Jur. 2d, Forgery, § 26, p. 695-696 (1968).
"A forged instrument is uttered when it is offered as genuine accompanied by words or conduct indicating that it is genuine, without regard to whether it is so accepted." 2 Wharton's Criminal Law and Procedure, § 650, p. 441 (Anderson ed. 1957). "It is not necessary to prove that the person intended to be defrauded was actually defrauded." State v. Jones, 9 N.J.L. 357, 373 (Sup. Ct. 1828).
Here, however, there was evidence that defendant had obtained goods and services by his improper use of Miller's credit card so that the proofs were also sufficient to show a violation of N.J.S.A. 2A:111-43, the section of the credit card act which reads as follows:
A person, who, with intent to defraud the issuer, a person or organization providing money, goods, services or anything else of value, or any other person, (a) uses for the purpose of obtaining money, goods, services or anything else of value a credit card obtained or retained in violation of [ N.J.S.A. 2A:111-42, "credit card theft"] or a credit card which he knows is forged, expired or revoked, or (b) obtains money, goods, services or anything else of value by representing without the ...