People v. Elliott (1891) · DecisionDepot

People v. Elliott

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

California Supreme Court Aug 31, 1891 No. No. 20808Published

Before: Garoutte

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Holding. The court held that the evidence was insufficient to support a forgery conviction under Penal Code section 470 because the prosecution failed to prove the check was not signed by an existing firm or, alternatively, that the check was fictitious under section 476.

Issues

Whether the evidence was sufficient to sustain a conviction for forgery under Penal Code section 470.
Whether a defendant can be convicted of forgery based solely on their own confessions.
Whether the prosecution of a fictitious check must be brought under Penal Code section 476 rather than section 470.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“It is elementary law that the defendant cannot he convicted upon his confessions alone”

“The law does not recognize a man’s intentions as a crime, however corrupt and criminal those intentions may be.”

“the act of making or passing a fictitious check could only be prosecuted when brought within the requirements and conditions of that section.”

Synopsis

Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.

The facts are stated in the opinion of the court.

Garoutte, J. — The defendant was convicted of the crime of forgery, and appeals to this court from the judgment and order denying his motion for a new trial.

[587]He was charged by the information with forging a certain check signed “ A. E. Rice & Co.”

The evidence in the case was as follows:—•

1. At the time the defendant procured money upon the check he stated that “Red Rice,” who was engaged in the furniture business at the city of Los Angeles, gave him the check as the result of a transaction in furniture.

2. “Red Rice” testified that"his name was Edwin A. Rice; that at the time of the alleged forgery he had a partner, and the name of the firm was Rice & McKee; and that he did not sign the check or authorize it to be signed.

3. The confessions of the defendant that he forged the check.

It is elementary law that the defendant cannot he convicted upon his confessions alone, and in this case there is no evidence whatever as to the non-existence of such a firm as “A. E. Rice & Co.,” and non constat but there was such a firm and the check was genuine. If we assume that there was such a firm in existence, then the judgment must be reversed, and a new trial ordered, by reason of the insufficiency of the evidence in not showing that the check was not signed by such firm. If we assume that there was no such firm in existence, then the check was a fictitious check, and the prosecution should have been had under section 476 of the Penal Code, and the case must be reversed upon that ground. From the facts set forth in the information, it is apparent that it was filed and conviction had under section 470 of the Penal Code, which section is quite broad in its scope, but not sufficiently broad to include the matters contained in section 476; for that section contemplates that the information must contain allegations, and the evidence be produced to substantiate them, that the check was fictitious, and the defendant knew that [588]fact. (William v. State, 9 Humph. 80; People v. Dowd, 4 Pac. C. L. J. 459.)

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Where a note, bill, check, etc., is the subject of a forgery, it must be proven that the instrument was not signed by the person by whom it purports to be signed, or that such person did not exist at the time, or in other words, is a fictitious person. In this case, as we have already seen, the proof is lacking in both of these essential respects. Considered in the light of the foregoing instruction of the court, there is no such firm in existence as “A. E. Rice & Co.”; therefore the check is fictitious, and the prosecution should have been had under section 476, heretofore cited. The law appears to recognize a distinction between forged instruments purport[589]ing to have the signature of a person in existence, and those where the signature is purely and entirely fictitious. Indeed, at common law, at one time, it was not forgery to sign the name of a fictitious person to an instrument. Section 470 of the Penal Code is quite broad in its terms, and in the absence of said section 476, it might probably be construed broad enough to include fictitious instruments as referred to in said section; but the legislative mind having been directed specially to that class of instruments with reference to the offense of forgery, it would seem the act of making or passing a fictitious check could only be prosecuted when brought within the requirements and conditions of that section. Considered in the light of the instruction, the signature is of a copartnership not in existence, which ipso facto makes the instrument a fictitious check; and the fact, if it be a fact, that defendant intended to sign the name of an existing firm to the check appears to be entirely immaterial. He is being prosecuted, and necessarily so, for an offense actually committed, and not for an offense he may have intended to commit. The law does not recognize a man’s intentions as a crime, however corrupt and criminal those intentions may be. His intentions simply form the light by which we read and weigh his acts. This is in no sense a question of idem sonans; but the defendant appears to have been prosecuted upon the theory that the signature of the existing firm, “ Rice & McKee,” for the purposes of this case, was attached to the check. Especially is this apparent when we consider the following instruction: “In order to constitute the crime of forgery, the resemblance of the forged signature to the genuine must be such as might deceive a person of ordinary caution.” While we are not called upon to review this instruction, it being given at the request of the defendant, yet in the face of the fact that the signature to this check is fictitious, as the [590]court assumed in the other instruction which we have considered, and that there was no such firm in existence as A. E. Rice & Co., and therefore no such genuine signature in existence, to say the least, the two instructions, when taken together, must have tended to confuse and cloud the minds of the jury.

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