People v. Thornburgh

HALL, J.

Defendant was convicted of the crime of forgery, and the ease is before this court on his appeal from an order denying his motion for a new trial and from the judgment.

The point was made, both upon demurrer and upon motion in arrest of judgment, that the information does not charge a public offense, and this is now the principal point relied upon for a reversal of the judgment.

The information charges that defendant “did then and there willfully, unlawfully, feloniously and fraudulently, and with intent then and there to damage, prejudice and defraud one Ignatz Beck, make and forge a certain instrument in writing, check, draft, order and writing obligatory, in the words and figures following, to wit:

“ ‘San Francisco, April 15th, 1905. No.-

“ ‘The Crocker Woolworth National Bank of San Francisco.

“ ‘Pay to self or order $10.00 ten dollars.

“ ‘Clearing House No. 21. C. A. Baxter.’ Endorsed ‘C. A. Baxter.’ ” And then follows a charge in apt language of uttering the same instrument to Beck.

It is urged that because the instrument set forth in the information appears upon its face to be payable to the maker thereof no one could be defrauded thereby; that the defendant is not charged with forging the indorsement of the name of the maker and payee on the back of the instrument, which makes the instrument in legal effect payable to bearer, but is charged with forging the face of the instrument only. The check set forth in the information, without the indorsement, is not such an instrument as could be the means of defrauding anyone. It purports to be an order signed by C. A. Baxter for the payment of money to C. A. Baxter. If the order should be complied with and the money called for paid to Baxter, he certainly would not be defrauded; neither would the payor be defrauded, for by accepting payment, Baxter would at once be estopped from disputing the genuineness of the signature. So, too, if Baxter indorsed the cheek, he

[40]

would be liable on the cheek as fully as though he signed it. “An order to pay money to one’s self cannot be the subject of forgery until the maker indorses it.”