77 Cal. 436 | Cal. | 1888
Defendant was informed against and convicted under subdivision 2 of section 529 of the Penal Code. That portion of said section which is material here is as follows: “Every person who falsely personates another, and in such assumed character, either,— .... 2. Verifies, publishes, acknowledges, or proves, in the name of another person, any written instrument with intent that the same may be recorded, delivered, and used as true, .... is punishable,” etc. The particular charge in the information was, that the defendant falsely personated one Dr. F. F. De Derky, and in such assumed character, verified, etc., a certain certificate of death, with intent that it should be recorded, etc.
There was no evidence tending to prove that defendant personated the said Dr. De Derky, or assumed his character. The facts proved by the prosecution were substantially these: One Louise Peckelhoff died at the
There is no question here as to the weight of evidence, or as to the right of the jury to believe or disbelieve certain testimony. The most that the jury could have found against the defendant, under any view of the evidence, was, that he signed De Derby’s name to the certificate without authority to do so, and without any reason to honestly believe that he had such authority. And they must have concluded that signing the certificate without such authority constituted the crime charged in the information. But there was no evidence that he personated Dr. De Derky, or pretended to any human being that he, the defendant, was Dr. De Derky. He certainly made no such pretension to the undertaker, Fredericks, or to Mrs. Hagenow, who both knew him well; and those were the only persons with whom he came into contact about the business of the certificate. If he signed the certificate without any authority, and fraudulently wrote De Derby’s name when he knew he had no right to do it, he may have been guilty of forgery; but a defendant cannot be convicted of a crime which is not charged in the information under which he is tried. To personate another person is to assume to be that person.
2. Instruction No. 3, asked by defendant and refused by the court, contains a very fair description of false personation; and it should have been given, or the substance of it should have been given in another form, which was not done.
3. We are not prepared to say that the certificate in question is not an instrument which may be recorded within the meaning of said section 529 of the Penal
Judgment and order denying a new trial reversed, and cause remanded.
Sharpstein, J., Paterson, J., Searls, C. J., and Thornton, J., concurred.