137 P. 276 | Cal. Ct. App. | 1913
The defendant in this case was charged in an information filed in the city and county of San Francisco, with having violated section
The instrument referred to in the charging part of the information was set out in full, and purports to be a duplicate certificate of birth signed by the defendant, wherein he, as the attending physician, certified that on September 10, 1910, he attended the birth of a male child in the city and county of San Francisco, named Charles Eugene Slingsby; that the name of the father of said child was Charles Henry Reynard Slingsby, and that the maiden name of the mother of said child was Dorothy Morgan Cutler.
The information further alleged that the defendant unlawfully, willfully, feloniously, and knowingly procured said certificate *84 to be filed, registered, and recorded in the office of the state board of health, in which office said certificate, if genuine, might have been filed, registered, and recorded under the laws of the state of California.
It was specifically charged in the information that said certificate was false in the particulars that neither of the parties mentioned therein was respectively the father or mother of the said child; that the real father and mother of the said child were respectively one Peter Colvin and one Lillian Anderson, all of which, the information alleged, the defendant well knew at the time he procured said certificate to be filed, registered, and recorded.
The defendant's demurrer to the information was allowed by the court, and the people have appealed.
It appears from the record before us that the demurrer was allowed solely upon the ground that the information did not state facts sufficient to constitute a public offense. In our opinion the demurrer upon the ground stated was well taken and rightfully allowed.
A birth certificate is not an instrument within the meaning of the term as used in section
Generally the term "instrument" as applied to documents necessarily imports a paper writing; but every paper writing is not necessarily an instrument within the settled statutory meaning of the term. With reference to writings the term *85
"instrument" as employed in our statutes has been defined to mean an agreement expressed in writing, signed, and delivered by one person to another, transferring the title to or creating a lien on real property, or giving a right to a debt or duty. (Hoag v. Howard,
An unbroken line of authorities from other jurisdictions uniformly concur in the definition of a statutory instrument, adopted and accepted in this state. Particularly in point is the case of State v. Kelsey, 44 N.J.L., pp. 1 and 32. In that case the secretary of state sought to recover certain fees for filing in his office every certificate of birth, marriage, and death; and the court was called upon to construe a statute which gave to the secretary of state, among other fees, twelve cents for "filing every bond or other instrument of writing of a public nature." The court in effect held that the phrase "instrument of writing," in its intrinsic signification and standing alone, did not embrace every possible paper writing, but only paper writings of a particular class, which did not include certificates of birth. The conclusion arrived at in the case last cited was based upon substantially the same reasoning which is the foundation for the definition of "instrument" adopted by the courts of this state.
For the reasons stated we are forced to the conclusion that the birth certificate alleged to have been prepared and procured to be filed by the defendant in the present case contains *86
none of the essentials of a statutory instrument; and therefore the conduct charged against the defendant in the information, however reprehensible it may be from a moral and ethical point of view, is not punishable under the provisions of section
The order appealed from is affirmed.
Richards, J., and Kerrigan, J., concurred.