People v. Baker
Before: McFarland
Synopsis
Criminal Law—Pleading—Sufficiency of Information—Word “Information.”—An information which alleges all the facts necessary to constitute the crime sought to be charged is not defective merely because the word “information” is used only in the heading, and not in the body of the instrument.
Id.—Statement of Venue.—Where an information contains the name of the county and state in the first part thereof, an averment that the crime was committed “at the county and state aforesaid ” is a sufficient averment of venue.
Id.—Forgery—Mortgage—Sufficiency of Execution.—The signing of a name of the owner of land by another person, to an instrument purporting to be a mortgage thereof, for the purpose of defrauding such owner and the person from whom the money was to be borrowed on the mortgage, is sufficient to constitute the crime of forgery, whether or not, as matter of law, the mortgage would have been good without the execution of it by both husband and wife.
Id.—Uttering of Forged Instrument—Record of Mortgage—Delivery.—The recording of a forged mortgage in the recorder’s office at the request of the mortgagee, who desired it to be placed on record before he examined the title, is a sufficient uttering of the forged instrument, although it was not in any other way delivered to the mortgagee.
Id.—Certificate of Acknowledgment—Variance—The fact that a copy of an alleged forged mortgage set out in an information charging the forgery thereof does not contain any certificate of acknowledgement, while the mortgage introduced in evidence has such a certificate attached to it, does not constitute a fatal variance.
Id.—Evidence—Signature of Note Set Out in Forged Mortgage.— Upon the trial of a defendant charged with the forgery of a mortgage, where the mortgage as set out in the information contained a copy of the mortgage note, it was not’error for the court to allow proof of the signing of the note as well as the mortgage.
Id.—Trial—Censure of Defendant’s Counsel—Unnecessary Consumption of Time.—Where the record shows that the defendant’s counsel consumed time unnecessarily in the repetition of questions, a censure for such consumption of time by the trial court is not prejudicial error, though the language of censure employed by the court is more harsh than can be commended.
McFarland, J. The defendant was charged with and convicted of the crime of forgery, and appeals from the judgment and also from an order denying a motion for a new trial.
The appellant makes a great many points in his briefs, and elaborately argues them; and we will notice briefly what we consider the most important of such points.
1. Appellant contends that the information is fatally defective because the word “ information” is not used in the body of that pleading. The word “ information” appears as a heading of the pleading, and the body of the pleading commences as follows: “ The said Edward L. Baker is accused by the district attorney,” etc. But, as the pleading alleges all the facts necessary to constitute the crime sought to be charged, it is not defective merely because the word “ information” is not used in the body of the instrument. The variation from the usual form was, we presume, the effect of oversight, or, perhaps, of an unexplainable desire to take a new departure; but this variation is not sufficiently material to make the pleading invalid.
We think, also, that the averment of venue is sufficient; the words “ county of Los Angeles, state of California,” having been used in the first part of the information, it was sufficient afterwards to allege that the crime was committed “ at the county and state aforesaid.”
2. The alleged forgery was of a certain mortgage, purporting to have been signed by one Morris M. Green; and it is contended by appellant that because said Green was a married man, and there was a homestead declaration on the property covered by the mortgage, therefore no forgery in law could be committed by signing the name of Green alone to the instrument. But if the instrument was falsely made in the name of Green, with intent, as is alleged in the information, to defraud the said Morris M. Green and one Strassforth, from whom the money was to be borrowed on the mort[190]gage, the act was forgery, whether or not, as a matter of law, the mortgage would have been good without the execution of it by both husband and wife.
The mortgage was placed on record in the recorder’s office by the appellant, or by one Hoy, who was the principal in the alleged crime, because Strassforth, who was to loan the money on the mortgage, desired it to be placed on record before he examined the title; and we think that, under the circumstances, this was a sufficient uttering of the alleged forged instrument, although it was not in any other way delivered to Strassforth, who about that time began to suspect the fraud.
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