113 Cal. 278 | Cal. | 1896
The defendant was convicted of the crime of forgery, and from the judgment and from the order denying him a new trial prosecutes these ap
Upon the trial of the cause evidence was introduced under both counts, the jury was instructed upon the law governing both the making and the uttering of a forged instrument, and a general verdict of guilty as charged was returned. It is here contended, as it was in the trial court, both upon demurrer and upon a motion in arrest of judgment, that the first count is radically defective.
The intent to defraud is not only an essential element of the crime of forgery, but it is an essential averment to every indictment for forgery. The first count is radically defective. It is therein merely declared that the defendant did fraudulently make and forge the certificate. It does not allege that the acts were done with intent to defraud any one. In People v. Mitchell, 92 Cal. 590, a count containing the identical defect was held by this court in Bank to be fatally imperfect.
As evidence was introduced under both counts, as the jury was instructed upon both counts, and as their verdict was general, it is impossible to say whether that verdict was based upon one or the other, or upon both of them. The judgment must, therefore, be reversed. (People v. Mitchell, supra; People v. Smith, 103 Cal. 563.)
In this case the attorney general has admitted, as the appellant has contended, that the information contains
The judgment and order are therefore reversed, and the cause remanded, with directions to the trial court to sustain the motion in arrest of judgment.
McFarland, J., and Temple, J., concurred.