111 Cal. 274 | Cal. | 1896
The defendant was convicted of forgery, and appeals from the judgment and from an ■order denying a new trial.
The information charges that appellant on July 30, 1894, did unlawfully, feloniously, falsely, etc., and with intent to defraud, “make and forge a certain instrument in writing, in words and figures following, to wit:
“ San Francisco, July 30, 1894.
“ G. W. Hume & Co.—William Cluff Company, wholesale grocers and provision dealers, 18 to 22 Front St-., corner Pine. Telephone 1819.
“ To balance.............
“ July '23. To bill rendered................... 15 50
“ Discount............................ .... 30
$15 20
“Wm, Cluff & Co.
“A. B.”
It further charges (in brief) that on said July 30th he willfully, fraudulently, etc., passed the said instrument “ as true and genuine,” to one J. Doming, with intent to defraud G. W. Hume and J. Doming, doing business under the firm name of G. W. Hume & Co. The instrument is admitted by appellant to be a receipt for
We do not deem it necessary to consider the points made by appellant that the information is insufficient, and that material errors were committed by the court in rulings upon the admissibility of evidence, for in our opinion there was no evidence sufficient to establish the crime of forgery. There was a conflict of evidence as to whether appellant was the person who did the acts testified to by the witnesses for the prosecution; but assuming that plaintiff was identified as the person who did those acts, the acts themselves do not constitute the crime charged. The facts testified to were (in brief) these: The writing alleged to have been forged was sent by Wm. Cluff & Co. to Hume & Co. the day before July 30, 1894, so that the latter might examine it, and be ready to pay when the collector of the former should call for payment. It was then simply an unreceipted account with no name signed to it. On July 30th, according to the people’s testimony, appellant went to the business place of Hume & Co., and asked J. Deming, one of the partners, for the payment of this account. Deming asked him the amount, and as he did not give the correct amount Deming refused to pay. Appellant said there must be some mistake, and that he would see about it, and went out. Deming testified: “ I naturally thought he was a collector for them.” Deming afterward went out himself, leaving Fannie A. Berry as acting cashier. Afterward appellant returned, and Miss Berry paid him the amount of the account, and appellant receipted it, by writing in the presence of Miss Berry, “Wm. Cluff & Co., A. B.” She testified: “I saw him sign Wm. Cluff & Co. per A. B. I understood him to be the collector in the employ of the William Cluff Company, who came there to collect, and was authorized to collect the bill.”
It is quite clear that the facts above stated do not-constitute forgery. When the crime is charged to be the false making of a writing, there must be the mak
We have been referred to no authorities to the point that the signing of another’s name as his agent is forgery; while there is a multitude of authorities to the contrary in text-books and adjudicated cases. “ If a man accept or indorse a bill of exchange in the name of another, without his authority, it is a forgery. But if he sign it with his own name, per procuration of the party whom he intends to represent, it is no forgery; it is no false making of the instrument, but merely a false assumption of authority.” (2 Arclibold’s Criminal Practice, 819.) The doctrine is fully discussed, and the views hereinbefore stated declared, in Regina v. White, 2 Carr. 404. In that case the defendant brought a bill to a banker as from Tomlinson. The bill was not endorsed, but the defendant said he would indorse it. The banker wrote “ per procuration Tomlinson,” beneath which the defendant signed his own name. It was held that this false assumption of authority was not forgery, as there was no false making. It has frequently been held that “the false instrument should carry on
The American authorities are as pronounced on the subject as the English. In the Matter of Heilbonn, 1 Park. C. C. 434, the court, after having referred to other cases, say: “It might not be necessary to refer to these authorities, for it is the essence of forgery that one signs the name of another to pass it off as the signature or counterfeit of that other. This cannot be when the party openly, and on the face of the paper, declares that he signs for that other; there he does not counterfeit the name of the other, nor attempt to pass the signature as the signature of that other. The' offense belongs to an entirely different class of crimes.” In Mann v. People, 15 Hun, 155, the court, in an elaborate opinion in which the authorities and the arguments for an opposite view are fully reviewed and discussed, holds that “ where one executes and issues an instrument purporting on its face to be executed by him as the agent of a principal therein named, he is not guilty of forgery, either at common law, or under the statutes of this state, even though he has in fact no authority from such principal to execute the same.” (We quote from the syllabus, which is a correct condensation of the opinion.) In Commonwealth v. Baldwin, 11 Gray, 199; 71 Am. Dec. 703, the supreme judicial court of Massachusetts say: “ It is not, says Sergeant Hawkins, the bare writing of an instrument in another’s name without the privity, but the giving it a false appearance of having been ex-cuted by him, which makes a man guilty of forgery. If the- defendant had written upon the note William Sehouler, by his agent Plenry W. Baldwin,’ the act plainly would not have been forgery. The party taking the note knows it is not the personal act of Sehouler. He does not rely upon the signature. He is not deceived
It is contended that the definition of forgery in section 470 of the Penal Code makes the crime different from forgery at common law; but with respect to the question here under discussion there is no such difference. At common law there were frequent embarrassing questions as to what hinds of writings were the subjects of forgery; while our code, to avoid those questions, enumerates a very large number of writings as subjects of forgery. But as to what constitutes forgery of instruments which are subjects of forgery, the definitions at common law and by our code are the same. “Forgery, at common law, is the false making or materially altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability.” (2 Bishop’s Criminal Law, 8th ed., sec. 523.) In the notes to the section of Bishop just quoted many other definitions are given, and it will be noticed that the leading descriptive words are “ false making” (or altering). In our code the words are “ every person who with intent to defraud another, falsely makes, alters,” etc., any of the written instruments enumerated. The definition is therefore essentially the same in both instances; and it is the same in the statutes of all the other states to which our attention has been called, but the meaning of the words “ false making” when applied to forgery is that herein-before stated.
The broad and well established distinction above set forth cannot be ignored by courts or jurors—even when in their opinion a more severe punishment should be imposed on a defendant than the one which the law prescribes for the offense of. which he is guilty. As was said in Mann v. People, supra, “ whatever his misdeeds, he must not suffer for a crime which he has not committed.”
Forgery is a grave and exceedingly dangerous crime.
For the foregoing reasons the judgment must he reversed; and, of course, another trial upon the theory on which the first trial was conducted would be useless.
The judgment and order appealed from are reversed.
Temple, J., and Henshaw, J., concurred.