People v. . TowerPeople v. . Tower
—Thе indictment contained but a single count and charged that the defendant “did make, forge and alter, and put off as true,” the endorsement of one Diez on a promissory note. The forging and uttering of a forged prоmissory note, or of an endorsement thereon, are distinct and -separate offenses, and each under our statute constitute the сrime of forgery in the second degree and subject the offender tо the same imprisonment. Penal Code, §§ 511, 521.
On the trial the defendant’s counsel, at the close of the case <on the part of the prosеcution, requested the court to direct a verdict for the defendаnt on the ground “that the indictment charges the defendant with having made 'and forged the signature of Diez, and that the evidence does not warrant а conviction of the crime of which he is charged in the indictment,” and аfter verdict he moved an arrest of judgment, stating the same *230 ground. The motiоn to direct a verdict and the motion in arrest were each deniеd, and exceptions to the rulings thereon present the only questions of law urged on this appeal.
There was a conflict of evidenсe upon the point whether the endorsement of Diez, which was admittеd to be a forgery, was written by the def endant. But the evidence justified a finding thаt he wrote the endorsement or procured it to be written, being present at the time, aiding and abetting the forgery. In either case he was рroperly charged as principal. Penal Code, § 29; State v. Ruckеr,
The principal point urged for a reversal is that the indictment is bad for duplicity in charging two distinct offеnses in one count, viz.: the forging and the uttering of the forged endorsement. It was held in People v. Rynders,
Sectiоns 278 and 279 of the Code of Criminal Procedure prescribe that an indictmеnt must charge but one crime and in one form, except that the crimе may be charged in separate counts to have been cоmmitted by different means, and that where the acts complained of mаy constitute different crimes, such crimes may be charged in separаte counts. Under the Code it is, perhaps, doubtful whether the two offensеs of forgery and uttering the forged instrument could be properly united in the sаme indictment. The crimes are distinct, arising upon different acts, although еach constitutes the offense of forgery in the second degree. But assuming that the off enses could be united in the same indictment, the remedy is рointed out in the Code, and that is by demurrer. Code Crim. Pro. § 323. Where not taken by demurrer, the objection is waived and does not constitute one of the grounds for which judgment can be arrested. Code Crim. Pro. § 467. It was formerly held that a prisoner was entitled to avail himelf on motion in arrest of every objection in substance or form which could have been taken on dеmurrer to the indictment. Nelson, J., People v. Wright,
In this case there was no objection taken on the trial to the form of the indictment. The verdiсt was general, and the sentence was appropriate to either offense. Under the circumstances, the point raised is not tenable.
The judgment and conviction should he affirmed.
All concur. ¡