People v. Jones

YORK, J.

As summed up in the supplemental opening brief of defendant and appellant, E. Gertrude Jones, in what she calls conclusions, the questions raised by appellant, particularly when they are closely analyzed, amount to not much more than a contention that an escrow agreement is not a document subject to forgery. At least that is the interpretation that we put upon the so-called conclusions, which are set forth in one paragraph, as follows:

“Conclusions: It is respectfully submitted that the indictment does not state a public offense, for the reason that escrow instructions is not enumerated in section 470 of the Penal Code, and is not one of the documents which is subject to forgery; that escrow instructions is not a contract within the meaning and purview of that section; that each act enumerated in that section constitutes a separate and distinct offense; that each count in the indictment contains

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five separate and distinct offenses, and should have been pleaded in separate counts, and it was therefore illegal to try and convict appellant for five separate and distinct felonies contained in each count; that the indictment charged that appellant’s entire escrow instructions was false, forged, altered and counterfeited, whereas, the proof tended to show that a clause was added therein, and, therefore, there was a material variance between the allegations of the indictment and the proof, which affected appellant’s substantial right; that there is no proof that appellant typed in the clause in her escrow instructions after she signed them, and that constituted a total failure of proof of the offenses charged, and appellant was entitled to the instruction advising the jury to acquit her on that ground; that the inclusion of the clause in appellant’s escrow instructions, without previous express oral agreement with the sellers and the latter’s failure to notice the clause therein did not constitute forgery on the merits, and for that reason the court should have advised the jury to acquit appellant; that the instruction given that if the jury believed that 'defendants uttered, published or passed as true and genuiné the escrow instructions in any count, they should find such defendant guilty upon that ground, was erroneous, because the alleged offenses were improperly pleaded and the instructions given did not include the essential elements; that the instruction given that if the jury believed that defendants aided and abetted in uttering, publishing, or passing as true and genuine the escrow instructions in any count, they should find such defendant guilty upon that ground, should not have been given, for the reason the indictment did not charge the appellant with the commission of that offense; that instructions 22, 23, 24, 25 and 27 regarding conspiracy should not have been given, because the indictment did not charge appellant with that offense, and there was no evidence that appellant conspired to commit the offense charged in the indictment; that the instruction that a set of escrow instructions is considered and construed together as a contract was erroneous, for the reason that section 470 of the Penal Code does not enumerate escrow instructions, and such instruction is not a contract within the meaning and purview of that section; that instruction 33, to the effect that if the defendant Ruline