90 Cal. 586 | Cal. | 1891
— The defendant was convicted of the crime of forgery, and appeals to this court from the judgment and order denying his motion for a new trial.
The evidence in the case was as follows:—•
1. At the time the defendant procured money upon the check he stated that “Red Rice,” who was engaged in the furniture business at the city of Los Angeles, gave him the check as the result of a transaction in furniture.
2. “Red Rice” testified that"his name was Edwin A. Rice; that at the time of the alleged forgery he had a partner, and the name of the firm was Rice & McKee; and that he did not sign the check or authorize it to be signed.
3. The confessions of the defendant that he forged the check.
It is elementary law that the defendant cannot he convicted upon his confessions alone, and in this case there is no evidence whatever as to the non-existence of such a firm as “A. E. Rice & Co.,” and non constat but there was such a firm and the check was genuine. If we assume that there was such a firm in existence, then the judgment must be reversed, and a new trial ordered, by reason of the insufficiency of the evidence in not showing that the check was not signed by such firm. If we assume that there was no such firm in existence, then the check was a fictitious check, and the prosecution should have been had under section 476 of the Penal Code, and the case must be reversed upon that ground. From the facts set forth in the information, it is apparent that it was filed and conviction had under section 470 of the Penal Code, which section is quite broad in its scope, but not sufficiently broad to include the matters contained in section 476; for that section contemplates that the information must contain allegations, and the evidence be produced to substantiate them, that the check was fictitious, and the defendant knew that
The court gave the jury the following instruction: “If you find from the evidence, beyond a reasonable doubt, that at the time and place alleged, with the intent alleged, defendant did feloniously make, utter, and pass as genuine the check in question; that he intended to sign thereto the name of the firm of Rice & McKee, and by mistake signed the name of ‘A. E. Rice & Co.,’ believing that to be the correct name, and uttered the same as the genuine check of said firm; and that said Southern California National Bank is a corporation as alleged; and that said check is false and unauthorized, — then you should find the defendant guilty, notwithstanding the mistake in the name of said firm.”
Without going into a technical analysis of this instruction as to whether or not it fully answers the requirements of the law in other respects, let us see if it be true that, in the words of the instruction, the defendant is guilty of forgery, “ if, intending to sign the name of the firm of Rice & McKee to the check, by mistake he signed the name of A. E. Rice & Co., believing that to be the correct name-.”
Where a note, bill, check, etc., is the subject of a forgery, it must be proven that the instrument was not signed by the person by whom it purports to be signed, or that such person did not exist at the time, or in other words, is a fictitious person. In this case, as we have already seen, the proof is lacking in both of these essential respects. Considered in the light of the foregoing instruction of the court, there is no such firm in existence as “A. E. Rice & Co.”; therefore the check is fictitious, and the prosecution should have been had under section 476, heretofore cited. The law appears to recognize a distinction between forged instruments purport
For the foregoing reasons, the judgment and order are reversed, and the cause remanded for a new trial.
Paterson, J., Harrison, J., McFarland, J., De Haven, J., and Sharpstein, J., concurred.