People v. Cole (1900) · DecisionDepot

People v. Cole

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Sep 17, 1900 No. Crim. No. 628.Published

Before: Cooper

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Holding. The court held that the information was insufficient because the instrument described on its face was not a forged check, as it was signed by the defendant and did not purport to be the check of another person.

Issues

Whether an information charging forgery is sufficient when the instrument on its face shows it is the check of the defendant rather than the person it is alleged to be.
Whether the information sufficiently alleged the forgery of an indorsement.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“It certainly is not a forged and counterfeited check.”

“The instrument must fraudulently purport to be what it is not.”

Synopsis

Criminal Law—Forgery.—In order to constitute the crime of forgery it is essential that there should be the making of a writing which falsely purports to be the writing of another.

Id.—Check Drawn by Defendant. — An information charging the defendant with uttering and attempting to pass a forged and counterfeited check, which shows upon its face that the instrument alleged to be forged was a check drawn and signed by the defendant himself, does not state a public offense; and the facts that such check purported to be indorsed by the person whose check was alleged to have been forged, and that the defendant had no funds in the bank on which it was drawn, are immaterial.

COOPER, C.

Defendant was convicted of the crime of forgery and sentenced to a term of eight years in the state prison at Folsom. He brings this appeal from the judgment and from an order denying his motion for a new trial. The charging part of the information was as follows, to wit:

“The said E. J. Cole, on the-day of August, A. D. 1899, at the said county of Sacramento, in the said state of California, and before the filing of this information, did then and there willfully, unlawfully, and feloniously utter, publish, and attempt to pass to one Gus Lavenson a certain false, forged, and counterfeited check as the true and genuine check of one S. B. Smith, for the payment of ten dollars, which aforesaid false, forged, and counterfeited check is in the words and figures following, to wit

[14]

“ ‘Sacramento, Cal., Aug. 31, 1899.

“ ‘National Bank of D. 0. Mills & Co., pay to E.

Cole, or order, Ten Dollars, $10.00.

“‘(Signed) E. J. CODE/

“[Indorsed on back]: S. B. Smith.

“United States revenue stamp two cents on face marked, ‘8-31-99. E. J. 0/

“With the intent then and there to prejudice, damage, and defraud the said Gus Lavenson; he, the said E. J. Cole, then and there well knowing the said false, forged, and counterfeited check to be false, forged, and counterfeited.”

The information charges the' defendant with uttering and attempting to pass the check therein set forth. A demurrer was filed to the information upon the ground that it does not substantially conform to the requirements of sections 950, 951, and

952

of the Penal Code, and that the facts therein stated do not constitute a public offense. We think the demurrer should have been sustained. The gist of the offense attempted to be charged was the uttering and attempting to pass the check therein described, “well knowing the said false, forged, and counterfeited check to be false, forged, and counterfeited.” But the information, while it states that the check was forged and counterfeited, shows upon its face that it was not. It is the check of defendant drawn on the National Bank of D. O. Mills

People v. Cole

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Synopsis

COOPER, C.

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