65 P. 303 | Cal. | 1901
Appeal from judgment and order denying motion for a new trial. The indictment is in the following language, to wit: —
"The said Samuel B. Terrill is accused by the grand jury of the county of Santa Clara, state of California, by this indictment, found this 12th day of June, A.D. one thousand eight hundred and ninety-nine, of the crime of forgery, committed as follows: The said Samuel B. Terrill, on the second day of January, A.D. eighteen hundred and ninety-seven, at the county and state aforesaid, with intent to prejudice, damage, and defraud Richard J. Hawke, uttered, published, and passed to him, as true and genuine, a fictitious note, apparently genuine and of legal efficacy, knowing the note to be fictitious; said note bearing said date, and purporting to be the note of an individual, to wit, Leon McAbee (when in fact there was no such person in existence), whereby said Leon McAbee promised to pay to said Richard J. Hawke three hundred and fifty dollars, in gold coin of the United States of America, one year after said date." *122
1. The defendant claims that his demurrer to the indictment should have been sustained, upon the sole ground that the facts stated do not constitute a public offense. The indictments was evidently based upon section
"Every person who makes, passes, utters, or publishes, with intention to defraud any other person, or who, with the like intention, attempts to pass, utter, or publish, or who has in his possession, with like intent to utter, pass, or publish, any fictitious bill, note, or check, purporting to be the bill, note, or check, or other instrument in writing for the payment of money or property of some bank, corporation, copartnership, or individual when in fact there is no such bank, corporation, copartnership, or individual in existence, knowing the bill, note, check, or instrument in writing to be fictitious, is punishable by imprisonment in the state prison for not less than one nor more than fourteen years."
The defendant argues that the note referred to in the indictment purported to be the note of an individual, and that the indictment alleges that there was no such "person" in existence, whereas it should have alleged that there was no such "individual" in existence. It is evident, under the section, that where the instrument is alleged to be that of an individual, the indictment must show that there is no such individual in existence, but we think the indictment in this case does show such fact. It does not contain the word "individual," but it plainly says, "the note of an individual, to wit, Leon McAbee (when in fact there was no such person in existence)." The word "person," in the connection in which it is used, evidently and plainly refers to the antecedent, "Leon McAbee." The words "such person" plainly mean such person as Leon McAbee. They do not — and cannot, by any reasonable construction, be held to — refer to a bank, corporation, or copartnership, because the indictment does not mention any bank, corporation, or copartnership. We think that a "person" of common understanding would know what is intended by the indictment.
2. It is claimed that the court adjudged the defendant guilty of "forgery," and that this was error. The verdict of the jury was: "We, the jury in the above-entitled cause, find the defendant guilty as charged in the indictment." The judgment recites: "The defendant was duly informed by *123
the court of the indictment presented against him on the 12th of June, 1899, of his arraignment and plea of `not guilty,' of his trial, and the verdict of the jury on the 9th of November, 1899, guilty of forgery as charged in the information. The defendant was then asked if he had any legal cause to show why judgment should not be pronounced against him, to which he replied that he had none. And no sufficient cause appearing to the court, thereupon the court renders its judgment, that the said Samuel B. Terrill having been duly convicted in this court of the crime of forgery, it is therefore ordered, adjudged, and decreed," etc. It is evident that the judgment was for the crime charged in the indictment, and that a crime is charged under said section
There is no form prescribed in the Penal Code as to what the judgment shall contain. "If no sufficient cause is alleged, or appears to the court, why judgment should not be pronounced, it must thereupon be rendered." (Pen. Code, sec. 1202.)
"When a judgment upon a conviction is rendered, the clerk must enter the same in the minutes, stating briefly the offense for which the conviction was had, . . . . and must, within five days, annex together and file the following papers, which will constitute a record of the action: —
"1. The indictment or information, and a copy of the minutes of the plea or demurrer;
"2. A copy of the minutes of the trial;
"3. The charges given or refused, and the indorsement thereon; and
"4. A copy of the judgment." (Pen. Code, sec. 1207.)
In speaking of the record in a criminal case, this court said in In the Matter of Ring,
Applying the rule laid down in the above case, the defendant cannot be again prosecuted for the same offense. The word "forgery," if improperly used in pronouncing judgment, could not in any way have misled or injured defendant. The indictment, verdict, minutes, and judgment, taken together, furnish defendant complete protection against another prosecution for the same offense.
It is provided in the Penal Code (sec. 1404): "Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice, in respect to a substantial right."
Section
In People v. Eppinger,
Indeed, we are not prepared to say that defendant was not found guilty of "forgery." The acts set forth in the indictment would be forgery at common law. (2 McLain on Criminal Law, sec. 764, and cases cited; 1 Bishop on Criminal Law, sec. 572; 1 Wharton on Criminal Law, secs. 659, 660.)
The common law of England, so far as not repugnant to or inconsistent with the constitution of the United States, or the constitution or laws of this state, is the rule of decision in all the courts of this state. (Pol. Code, sec. 4468.) Under the heading of "Forgery and Counterfeiting," chapter IV, title XIII, of the Penal Code (secs. 470-482), we find section
In People v. Elliott,
In the opinion it is said: "The law appears to recognize a distinction between forged instruments purporting to have the signature of a person in existence, and those where the *126
signature is purely and entirely fictitious. . . . Section
In People v. Eppinger,
In People v. Lee,
It thus seems to have been generally regarded as forgery by this court. To decide that the uttering of a fictitious check should be prosecuted under section
The Revised Statutes of Missouri (sec. 3653) provide that the false making or forging of any instrument in writing for the payment of money, purporting to be the act of another, to which shall be affixed any fictitious name, or the name or pretended name of any person not in existence, shall be deemed a forgery. It was held in State v. Minton,
People v. Eppinger,
An examination of People v. Elliott,
3. It is urged that the evidence is insufficient to sustain the verdict, for the reasons, that the venue is not proven; that the evidence does disclose the existence of the person claimed to be fictitious; that the note received in evidence differed materially from the note described in the indictment; and finally, that defendant has been already convicted of the same offense charged in the indictment.
The witness Hawke testified that his place of residence was Almaden; that he gave defendant four hundred dollars to be loaned; that, in a conversation, defendant said to him that he had loaned the money to Leon McAbee on good security, and that he would send witness the papers; that he received the papers a week or two afterwards, which included the note; that the papers came to witness by mail; and that all these matters took place in Santa Clara County. This was sufficient proof of the venue.
The prosecution offered evidence tending to show that *128
there was no such man as Leon McAbee in Santa Clara County; that his name did not appear in the directory. This evidence was competent. (People v. Eppinger,
The first indictment in said case was demurred to in the court below, and the demurrer sustained. The court ordered the case "resubmitted to the present grand jury." The same grand jury, upon the same facts upon which defendant had been charged in the first indictment, returned into court another indictment for the same offense. Defendant was tried upon the last indictment so found, and a verdict of guilty returned against him. He applied for, and was granted, a writ of prohibition by this court, prohibiting the court below from pronouncing judgment or proceeding further in said matter, for the reason that the second indictment *129
found by the same grand jury was void. The defendant, therefore, having at his own request procured a judgment of this court that the indictment upon which he was tried and convicted is void, cannot be heard to rely upon such conviction as a bar to the present indictment. He has never before been in jeopardy upon a valid indictment for the same offense. (Pen. Code, secs.
It follows that the judgment and order should be affirmed.
Haynes, C., and Smith, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are affirmed.
Henshaw, J., McFarland, J., Temple, J.
Hearing in Bank denied.