People v. Weiskopf

[216]

SHAW, J. pro tem.

The defendant was charged by the amended information herein in four counts with the forging and uttering of four affidavits of birth relating to certain named persons. Copies of these affidavits were set forth in the information. She was found guilty on two of these counts and acquitted on the other two. She then made.a motion in arrest of judgment and a motion for new trial, both of which were denied. She was placed on probation without the rendition of any judgment against her. She appeals from the orders denying her motions above mentioned. The order denying her motion in arrest of judgment is not appealable (Pen. Code, sec. 1237), so the appeal therefrom must be dismissed.

On appeal she presents but two points: first, that the counts of the information on which she was convicted state no public offense because the affidavits set forth therein are not such writings as can be the subjects of forgery; and second, that the evidence is insufficient to support her conviction on either count.

The first point, as to the sufficiency of the information, cannot be considered on appeal from an order denying a new trial.

(People

v.

Lovlee,

(1939) 35 Cal.App.2d 554 [96 P.2d 177];

People

v.

Duncan,

(1942) 50 Cal.App.2d 184, 186 [122 P.2d 587];

People

v.

Darcy,

(1943) 59 Cal.App.2d 342, 346 [139 P.2d 118].) Assuming that the question whether the affidavits are such instruments as will support a charge of forgery may be raised under defendant’s second point, insufficiency of the evidence, we have already decided it adversely to her. After defendant’s conviction a writ of habeas corpus was issued in her behalf by this court, on the hearing of which the question presented was the sufficiency of these identical counts of the information to state a public offense, it being contended in behalf of the petitioner there that the affidavits set forth in the information were not instruments, the fabrication of which would constitute forgery. We held the information sufficient under the rule which governs in habeas corpus proceedings, and also expressed the opinion, which was perhaps obiter dictum there, that it would also be sufficient under the somewhat more liberal rule as to the scrutiny of defects which prevails on appeal.