184 P. 885 | Cal. Ct. App. | 1919
In a suit against Theodore Wiesendanger the plaintiff, Marcel Carl, was awarded a verdict for three hundred dollars actual and seven hundred dollars punitive damages for slander. Wiesendanger appealed from the judgment entered upon the verdict. After the death of the appellant, upon suggestion, the administrator of his estate was substituted.
The complaint was in two counts, and in it the plaintiff in substance alleged the defendant had to two different persons, then the employers of the plaintiff, on the same day *281 but at different times accused the plaintiff of having forged the defendant's name as the indorser of a certain check. The appellant makes six specifications of error, which may best be discussed in what appears to be their logical order. They are closely related and all refer to the allegation that the defendant said: "Mr. Carl is a forger. He has forged my name to a check and I have a lithographed copy of the check in my office."
[1] In criminal prosecutions for forgery, the intent to defraud is not only an essential element of the crime of forgery, but is an essential element to every indictment for forgery. (People v. Turner,
[3] The appellant contends the court erred in instructing the jury that in order to enable them to determine whether the language used by the defendant amounted to an accusation of the crime of forgery, he would define for their purposes the offense of forgery, and, in further instructing them that "Section
[4] The appellant contends there was a fatal variance between the words alleged and those proved. Neither of the two witnesses to whom the statement was made testified that the defendant said, "Mr. Carl is a forger," but one testified the defendant said of Carl: "He forged a check on me," and the other, that the defendant said: "He had a check which he forged his name to it." The appellant relies on those cases which hold that in a civil suit for slander the plaintiff must prove the use of the slanderous words, and that it is unavailing that the jury imputes a slanderous meaning to other words. (Fleet v.Tichenor,
The appellant claims the court erred in refusing to give two requested instructions and in giving another. His argument on those points is based upon the same grounds and the same rules and authorities which have been discussed. An examination of the record and all the instructions leads to the conclusion that the instructions given were fair to the defendant, complete and in accord with the law that in such actions enough of the words alleged must be proved to contain the sting of the charge and that all the words charged need not be proved.
The judgment is affirmed.
Langdon, P. J., and Nourse, J., concurred.