People v. Driggs

Appeal from judgment of conviction and an order denying defendant's motion for a new trial.

By information filed by the district attorney the defendant was charged with the crime of forgery, it being averred that she forged the name of one John J. Charnock to an instrument which purported, in consideration of "past kindness and tender care bestowed upon him by the said Gertrude Driggs," to lease to her for a term of years certain real estate therein described.

Appellant attacks the information, claiming that it is defective in that it charges her with the commission of two offenses, namely, that of forgery as defined in section 470, Penal Code, and also that defined in section 115, Penal Code, which provides that "every person who knowingly procures or offers any false or forged instrument to be filed, registered or recorded in any public office within this state, which instrument, if genuine, might be filed, or registered, or recorded under any law of this state, or of the United States, is guilty of felony."

The information, in appropriate language, charges the defendant with forging the instrument, it being averred therein that "Gertrude Driggs is accused . . . of the crime of forgery committed as follows: That the said Gertrude Driggs . . . did willfully, unlawfully, falsely, fraudulently and feloniously make, alter, forge and counterfeit a certain lease, indenture, writing obligatory, conveyance and contract, which instrument is and was in the following words and figures, *Page 242 to wit," which instrument is set out in haec verba. This is followed by the averment which it is claimed states an offense under said section 115, Penal Code, and is as follows: "That afterward, to wit, on or about the twenty-fifth day of March, 1909, Gertrude Driggs, well knowing that the said instrument was false, altered, forged and counterfeited as aforesaid, and with intent to defraud, . . . did willfully, unlawfully, falsely, fraudulently and feloniously, at and in the county and state aforesaid, utter, publish and pass as true and genuine the instrument aforesaid, by offering the said instrument for record at the office of the recorder of the county of Los Angeles, state of California, and did then and there cause the same to be recorded as a record in said office."

The information in form is identical with that considered in the case of People v. Harrold, 84 Cal. 567, [24 P. 106], and it is upon the authority of that case that appellant bases her claim that the information states more than one offense. An examination of the opinion in the Harrold case discloses the only point there decided was that the instrument which was the subject of forgery, even if genuine, was not one entitled to be recorded, and hence it was not a felony to offer it for record, or to cause or procure it to be recorded; and, for this reason, says the court, the instrument leaves but one offense charged, that of forgery. This was a sufficient ground for so deciding, and we cannot accept the opinion as an authority for holding the information defective upon the grounds claimed in the case at bar. Indeed, it was not so held. All that the allegation purports to aver is that defendant uttered, published and passed as true and genuine the alleged forged instrument, and that she did this, not by assigning or transferring it, but in a certain specified manner, namely, by offering it for record, etc. The utterance, publishing and passing of the instrument as true and genuine are acts constituting the offense under section 470. The manner of such utterance and publishing is evidentiary, and should be disregarded as mere surplusage. The averment does not purport to charge the substantive offense defined by said section 115. In the absence of such averment, proof that the instrument was offered for record would constitute evidence of its utterance and publication. (People v. Baker, 100 Cal. 190, [38 Am. St. Rep. 276, 34 P. 649].) In our *Page 243 judgment, there is no merit in appellant's contention upon this ground. Moreover, such objection to an information is made the ground for demurrer by subdivision 3 of section 1004 of the Penal Code, and when demurrer to the information upon such ground is not interposed, the defendant must be deemed to have waived such objection. (Pen. Code, sec. 1012.) No demurrer was interposed by defendant upon the ground stated, and even conceding the information to be objectionable for the reasons now urged by appellant, she must, nevertheless, be deemed to have waived the point.