People v. Mitchell

Garoutte, J. This is an appeal from a judgment and order denying defendant’s motion for a new trial. The charging part of the information is as follows: “ That the defendant did then and there unlawfully, feloniously, and fraudulently make and forge a certain check, an instrument in writing, in the words and figures following, to wit, .... and having indorsed thereon the words ‘ Fred J. Mitchell,’ did, .... willfully, unlawfully, falsely, fraudulently, knowingly, feloniously, and with intent to defraud, prejudice, and damage one M. J. McBride, utter, publish, and pass the said false and forged check and instrument in writing hereinbefore set forth, and said indorsement thereon, to said M. J. McBride as true and genuine.”

There are various matters relied upon by appellant as error, arising during the progress of the trial, but it will only be necessary to notice a few of the more important assignments.

The information is fatally defective, and the motion in arrest of judgment should have been granted. It will be observed that the charging part of the information consists, as it were, of two branches; that is, the defendant is charged with making and forging a certain check, and with uttering and passing the same with intent to defraud. This character of pleading has been recognized and approved in the cases of People v. Shotwell, 27 Cal. 394, and People v. Frank, 28 Cal. 513, and it is there decided that under such an information, evidence of the false making of the check, or of uttering and passing the same knowing it to be forged, or evidence both of the making and uttering, will sustain a verdict of guilty.

Under the portion of the information charging the felonious making and forging of the check, there is no allegation that such acts of the defendant were done with [592]intent to defraud. Forgery is a statutory offense, and the intent to defraud is the essential element, and must be alleged in the information in order that the judgment of conviction upon such a charge will have sufficient support. As to the portion of the information charging the passing and uttering, it is alleged that the defendant “ did willfully, unlawfully, falsely, knowingly, and feloniously, with intent to defraud, utter, pass, .... as true and genuine, the said false and forged check.” Section 470 of the Penal Code provides that the defendant, at the time he utters and passes the instrument as genuine, must know the same to be “ false, altered, forged, or counterfeited,” and the allegation that he falsely and knowingly uttered and passed as genuine a false and forged check cannot be construed to mean that he knew the check was false and forged at the time be uttered and passed it. For these reasons, we think the charging part of both branches of the information is fatally defective when taken separately, and it gains no additional strength when joined together and taken as a whole.