People v. Jones

KERRIGAN, J.

The defendant was tried and found guilty of the crime of forgery as charged in the information. He moved for a new trial and in arrest of judgment, which motions were denied. Prom the judgment and from the order denying his motion for a new trial he prosecutes this appeal.

It appears from the record that the defendant, in company with one John Lewis, on December 3, 1908, called at the place of business of Smith Bros., a corporation, and the defendant, acting as spokesman, represented that they were a committee for the collection of funds for the benefit of Walter Miller, who, they said, was either ill or had been injured. Upon this representation a check was drawn in favor of Walter Miller on the First National Bank of Oakland for the sum of $5, signed “Smith Bros. Inc. J. Prank Smith, Secretary President.” Thereafter John Lewis, in the presence of the defendant, indorsed the name of Walter Miller on the back of the check and received from the Forum Cafe, a corporation, the sum of $5 in payment thereof.

One of the contentions of defendant is that it is not shown, either in the information or by proof, whether Walter Miller was a real or fictitious person.

The information is drawn under section 470 of the Penal Code, and charges that on or about December 3, 1908, the defendant, “Daniel Jones, with intent to prejudice, damage and defraud Smith Bros. Inc. . . . did unlawfully . . . make and forge a certain indorsement of said check and order by then and there falsely indorsing thereon the name of Walter Miller,” etc.

Said section 470, as amended in 1905, reads as follows: “Every person who, with intent to defraud, signs the name of

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another person, or of a fictitious person, knowing that he has no authority so to do, to . . . any acceptance or indorsement of any bill of exchange, promissory note, draft, order ... or other contract for money ... is guilty of forgery. ’ ’

Section 476 provides as follows: “Every person who makes, passes or utters, or publishes, with intent to defraud any other person; or who, with like intention, attempts to pass, utter or publish . . . any fictitious bill, note or cheek, 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 not such bank ... or individual in existence, knowing the bill . . . or other instrument in writing to be fictitious, is punishable by imprisonment in the state prison,” etc.