92 Cal. 590 | Cal. | 1891
Lead Opinion
This is an appeal from a judgment and order denying defendant’s motion for a new trial. The charging part of the information is as follows: “ That the defendant did then and there unlawfully, feloniously, and fraudulently make and forge a certain check, an instrument in writing, in the words and figures following, to wit, .... and having indorsed thereon the words ‘ Fred J. Mitchell,’ did, .... willfully, unlawfully, falsely, fraudulently, knowingly, feloniously, and with intent to defraud, prejudice, and damage one M. J. McBride, utter, publish, and pass the said false and forged check and instrument in writing hereinbefore set forth, and said indorsement thereon, to said M. J. McBride as true and genuine.”
There are various matters relied upon by appellant as error, arising during the progress of the trial, but it will only be necessary to notice a few of the more important assignments.
The information is fatally defective, and the motion in arrest of judgment should have been granted. It will be observed that the charging part of the information consists, as it were, of two branches; that is, the defendant is charged with making and forging a certain check, and with uttering and passing the same with intent to defraud. This character of pleading has been recognized and approved in the cases of People v. Shotwell, 27 Cal. 394, and People v. Frank, 28 Cal. 513, and it is there decided that under such an information, evidence of the false making of the check, or of uttering and passing the same knowing it to be forged, or evidence both of the making and uttering, will sustain a verdict of guilty.
Under the portion of the information charging the felonious making and forging of the check, there is no allegation that such acts of the defendant were done with
Appellant insists that the information is also defective in alleging that “ the defendant did make and forge,” the statute using the words “ falsely make and forge.” The Century Dictionary thus defines the verb “forge”: “To fabricate by false imitation; specifically in law, to make a false instrument, in similitude of an instrument, by which one person could be obligated to another, for the purpose of fraud and deceit.” The words “ forge, forger, and forgery,” when used in law, have no honest meaning, but imply fraudulent deceit; and to say that “the defendant forged a check” would imply the false making fully to the same extent as if it was said, “ he falsely forged a check.”
In this case the court instructed the jury that it was their duty to convict the defendant if the evidence sufficiently disclosed either a forgery of the check or an uttering and passing of the check. This instruction was entirely correct if those two elements of the charge had
The evidence in the case is very weak. All the testimony indicating that the defendant forged the check was given by one Gumpel, an expert upon handwriting, who, by comparison with genuine writing of the defendant, testified that in his opinion the face of the check was written by the defendant. Conceding that the face of the check included the signature, still there is no evidence in the record to indicate but that Thompson, the purported drawer of the check, had authorized the defendant to attach his signature thereto. Indeed, there is no evidence that there is or ever was such a person in existence as the said Thompson.
For the foregoing reasons, let the judgment and order be reversed, and the cause remanded, with directions to the court below to allow a new information to be filed if the court is so advised.
Paterson, J., Harrison, J., and Sharpstein, J., concurred.
Concurrence Opinion
In my opinion, the information in this case is sufficient, but I concur in the judgment, upon the ground that the evidence is insufficient to sustain ,the verdict. The only evidence that