Carl v. McDougal

BRITTAIN, J.

In a suit against Theodore Wiesendanger the plaintiff, Marcel Carl, was awarded a verdict for three hundred dollars actual and seven hundred dollars punitive damages for slander. Wiesendanger appealed from the judgment entered upon the verdict. After the death of the appellant, upon suggestion, the administrator of his estate was substituted.

The complaint was in two counts, and in it the plaintiff in substance alleged the defendant had to two different persons, then the employers of the plaintiff, on the same day

[281]

but at different times accused the plaintiff of having forged the defendant’s name as the indorser of a certain check. The appellant makes six specifications of error, which may best be discussed in what appears to be their logical order. They are closely related and all refer to the allegation that the defendant said: “Mr. Carl is a forger. He has forged my name to a check and I have a lithographed copy of the check in my office.”

[1]

In criminal prosecutions for forgery, the intent to defraud is not only an essential element of the crime of forgery, but is an essential element to every indictment for forgery.

(People

v.

Turner,

113 Cal. 278, [45 Pac. 331];

People

v.

Smith,

103 Cal. 563, [37 Pac. 516].)

[2]

In reliance upon this strict rule of criminal pleading, the appellant contends the complaint in the present case was fatally defective, in that it contained no allegation that the slanderous words were used with the intention of charging that the plaintiff had forged the indorsement intending thereby to defraud. If the words were slanderous, the intention with which they were used is immaterial, except, possibly, upon the question of exemplary damages. The rule relied upon by the appellant binds him. The charge of forgery necessarily includes all the elements of the crime. If the defendant accused the plaintiff of forgery or said the plaintiff had forged a check, he accused the plaintiff of a felony. It is not necessary that the language used should be chosen with the technical nicety required in an indictment.