People v. Foster
People v. Foster
Opinion of the Court
Defendant was convicted in the circuit court for Berrien county, before a jury of the crime of forgery contrary to MCLA § 750.248 (Stat Ann 1965 Cum Supp § 28.445).
“I hereby authorize the issuer of the Midwesl Bank Card imprinted above to pay the amount shown as total hereon upon presentation hereof to issuer by a bank which is a member of the Midwest Bank Card system. I hereby promise to pay said issuer of the amount shown as total hereon (together with other charges due thereon, if any) subject to and in accordance with the terms of the cardholder agreement governing the use of issuer’s Midwest Bank Cards.”
Two Benton township police officers were at the station at the time defendant presented the credit card and signed the receipt. One of the officers knew both Mr. Kelly and the defendant. Upon defendant’s leaving the station the officer asked to see a copy of the receipt — and upon examining it realized that defendant was using a credit card issued to Mr. Kelly. Thereupon the officers pursued defendant and his 2 companions. They stopped defendant about a mile away from the station, asked for his driver’s license, arrested him and when starting to search him defendant took the receipt
On appeal defendant asserts 3 claims of error to be reviewed which are restated and dealt with in order.
1. The search of the car and seizure of the credit card was illegal by reason of the application of US Const, Am 4 and Const 1963, art 1, § 11, which protect against unreasonable search and seizure.
Defendant cites the cases of Preston v. United-States (1964), 376 US 364 (84 S Ct 881, 11 L Ed 2d 777) and People v. Dombrowski (1968), 10 Mich App 445, in support of Ms position.
The case of People v. Dombrowski, supra, can be distinguished upon the facts. Therein the police made a search of the automobile at the scene of the arrest but were unable to search the trunk because of a lack of a key. Subsequent thereto and while the defendant was in jail the officers obtained a key from a search of his personal belongings and used it to open the trunk. This Court ruled in Dombrowski, supra, that the search was not substantially contemporaneous with the arrest and therefore was illegal. On p 449 of the opinion Judge Fitzgerald speaking for the Court stated in part as follows:
*435 “The police should have obtained a warrant upon their subsequent discovery of the key, since we require the procurement of a search warrant whenever the evidence obtained is not listed among those articles admissible without a warrant, and whenever the defendant and his vehicle are in police custody previous to the search and the search is not substantially contemporaneous with the arrest.” (Emphasis supplied.)
In the present case, under the facts, the search was substantially contemporaneous with the lawful arrest and therefore legal. The credit card was properly admitted and the trial court did not commit error in refusing to suppress it on motion before trial.
2. Defendant was denied due process because the people failed to prove the terms, conditions and manner of payment required to be made under the terms of the credit card as mentioned on the purchase receipt for the goods.
The signed receipt was a personal promise to pay for the merchandise purchased. The credit card authorized the extension of credit to the named holder of the credit card. Defendant was not the named holder but in order to obtain credit, forged Mr. Kelly’s name on the receipt for the goods obtained. The terms and manner of payment for the purchase are not material elements to prove the crime of forgery. The Court takes judicial notice of the fact that credit cards are universally used for obtaining credit in the purchase of goods and services. The fact that the credit card holder was required to pay for his purchases over a longer or shorter period of time with or without interest could not exonerate the defendant of his forging the name of Mr. Kelly on the “accountable receipt for * * * goods.”
This issue was raised for the first time in defendant’s motion for a new trial. An objection challenging the sufficiency of the complaint by claiming that it was made upon actual knowledge when it should have been made on information and belief is made too late after trial. People v. Licavoli (1931), 256 Mich 229 and People v. Linscott (1969), 14 Mich App 334.
Affirmed.
“Any person who shall falsely make, alter, forge or counterfeit any public record, * * * bill of lading, bill of exchange, promissory note, or any order, acquittance of discharge for money or other property, or any waiver, release, claim or demand, or any acceptance of a bill of exchange, or indorsement, or assignment of a bill of exchange or promissory note for the payment of money, or any accountable receipt for money, goods or other property, with intent to injure or defraud any person, shall be guilty of a felony.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.