Wis. Stat. § 943.38

Current through Acts 2023-2024, ch. 272

Section 943.38 - Forgery

(1) Whoever with intent to defraud falsely makes or alters a writing or object of any of the following kinds so that it purports to have been made by another, or at another time, or with different provisions, or by authority of one who did not give such authority, is guilty of a Class H felony:

(a) A writing or object whereby legal rights or obligations are created, terminated or transferred, or any writing commonly relied upon in business or commercial transactions as evidence of debt or property rights; or

(b) A public record or a certified or authenticated copy thereof; or

(c) An official authentication or certification of a copy of a public record; or

(d) An official return or certificate entitled to be received as evidence of its contents.

(2) Whoever utters as genuine or possesses with intent to utter as false or as genuine any forged writing or object mentioned in sub. (1), knowing it to have been thus falsely made or altered, is guilty of a Class H felony.

(3) Whoever, with intent to defraud, does any of the following is guilty of a Class A misdemeanor:

(a) Falsely makes or alters any object so that it appears to have value because of antiquity, rarity, source or authorship which it does not possess; or possesses any such object knowing it to have been thus falsely made or altered and with intent to transfer it as original and genuine, by sale or for security purposes; or

(b) Falsely makes or alters any writing of a kind commonly relied upon for the purpose of identification or recommendation; or

(c) Without consent, places upon any merchandise an identifying label or stamp which is or purports to be that of another craftsman, tradesman, packer or manufacturer; or

(d) Falsely makes or alters a membership card purporting to be that of a fraternal, business or professional association or of a labor union; or possesses any such card knowing it to have been thus falsely made or altered and with intent to use it or cause or permit its use to deceive another; or

(e) Falsely makes or alters any writing purporting to evidence a right to transportation on any common carrier; or

(f) Falsely makes or alters a certified abstract of title to real estate, a title insurance commitment, a title insurance policy, or any other written evidence regarding the state of title to real estate.

Wis. Stat. § 943.38

1977 c. 173; 2001 a. 109; 2005 a. 205.

Acceptance of or cashing a forged check is not an element of uttering under sub. (2). Little v. State, 85 Wis. 2d 558, 271 N.W.2d 105 (1978). Fraudulent use of a credit card need not involve forgery. If forgery is involved, the prosecutor has discretion to charge under s. 943.41 or 943.38. Mack v. State, 93 Wis. 2d 287, 286 N.W.2d 563 (1980). Signed receipts for bogus magazine subscriptions constituted forgery even though the defrauded subscriber did not specifically rely on the receipt. State v. Davis, 105 Wis. 2d 690, 314 N.W.2d 907 (Ct. App. 1981). The absence of a maker's signature did not immunize the accused from the crime of uttering a forged writing. State v. Machon, 112 Wis. 2d 47, 331 N.W.2d 665 (Ct. App. 1983). Depositing a forged instrument into an automated teller machine constitutes "uttering" under sub. (2). State v. Tolliver, 149 Wis. 2d 166, 440 N.W.2d 571 (Ct. App. 1989). Whether a writing is a negotiable instrument and whether the conduct of the victims when presented with the writing was negligent is irrelevant to whether the writings were within the terms of sub. (1) (a). State v. Perry, 215 Wis. 2d 696, 573 N.W.2d 876 (Ct. App. 1997), 97-0847. Sub. (2) does not incorporate the requirement of sub. (1) that the offender act with intent to defraud. State v. Shea, 221 Wis. 2d 418, 585 N.W.2d 662 (Ct. App. 1998), 97-2345. A check maker's intent or reliance on an endorsement are immaterial to the crime of forgery by the endorser. The essence of forgery is the intent to defraud. The use of an assumed name may be a forgery if done for a fraudulent purpose. State v. Czarnecki, 2000 WI App 155, 237 Wis. 2d 794, 615 N.W.2d 672, 99-1985. A person cannot falsely make a postal money order by writing in the name of someone else as the payer as that does not affect the genuineness of the money order itself. It is not forgery to add mere surplusage to a document. State v. Entringer, 2001 WI App 157, 246 Wis. 2d 839, 631 N.W.2d 651, 00-2568. The words "legal rights" in sub. (1) (a) plainly cover the right to dispense prescription drugs without violating the law. That the legislature has created specific crimes that cover obtaining a controlled substance by forgery under s. 961.43(1) (a) and (2) and obtaining a prescription drug by forgery under s. 450.11(7) and (9) (a) does not mean that each violation is not punishable under this section, the general forgery statute. The fact that the forgery statute applies to writings creating property rights does not mean that it applies only to such writings. State v. Fortun, 2010 WI App 32, 323 Wis. 2d 732, 780 N.W.2d 238, 09-1172.