People v. Smith
Before: Searls
Synopsis
Criminal Law—Forgery—Uttering Forged Check—Information— Knowledge of Falsity.—An information containing two counts, the first of which charges the defendant with knowingly and feloniously, and with intent to defraud, forging a check which is set out in the information, and the second of which charges that the defendant did “ utter, publish, and pass as true and genuine a certain forged, false, and counterfeit check, which said check was the same check referred to in the first count of this information, ” and sets out a copy of the check, but which fails to allege knowledge on the part of the defendant of its falsity, fails as to the second count to state an offense.
Id.—Defective Count—Failure to Demur—Waiver.—The failure of a count in an information to state an offense is a defect which is not. waived by a failure to demur, but may be raised at any time.
Id. —Evidence—Possession of Forged Instrument.—The possession of an instrument recently forged, by one claiming under it, is evidence against the possessor.
Id.—Admissibility of—Declaration of Defendant.—The declaration of a defendant, charged with the forgery of a check, that he had worked for the man whose name was signed to the check, and that the latter had no money to pay him, and had given him the check, is admissible under the charge of forgery, but not under a substantially defective count of uttering the forged check which states no offense.
Id.—General Admission of Evidence Under Good and Bad Counts— Erroneous Judgment.—Where an indictment contains two counts, one of which is bad and the other good, and the trial court holds them both to be good, and admits evidence under both counts, and a verdict of guilty is rendered upon both counts, and judgment pronounced thereon, such judgment is erroneous, and must be reversed.
Id.—Misnomer—Variance in Middle Name.—The middle name or names, or the middle initial letter or letters, of a person’s name, are not material, either in civil or criminal proceedings, and a variance between the pleading and proof in respect to such middle name or initial is immaterial; hence, there is no fatal variance between an information charging a defendant with forging a check in the name of R. S. Southerland, and proof that R. G. Southerland was the true name of the party whose name was sought to be forged.
Searls, C. Defendant was convicted of the crime of forgery, and appeals from the judgment and from an order denying a new trial. There were two counts in the information filed against him. In the first it is charged he did, on or about November 6,1893, willfully, unlawfully, knowingly, and feloniously, and with intent then and there to defraud, prejudice, and damage E. S. Southerland and the Santa Rosa Bank (a corporation, etc.), falsely make, forge, and counterfeit a certain check in the words and figures as follows, to wit:
“ Santa Eosa, Cal., Nov. 6, 1893.
“No.191.
“Santa Eosa Bank,pay to John W. Fields, or bearer, $17.50 dollars. E. S. Southerland.
, “[Indorsed] J. W. Fields.”
1The second count charges that defendant did thereafter and on the eighth day of November, 1893, “utter, publish, and pass, as true and genuine, a certain forged, false, and counterfeit check, which said check was the same check referred to in the first count of this information, which check is in the words and figures as follows.” Then follows a copy of the check precisely as in the first count, “with intent thereby to prejudice, damage, and defraud the said E. S. Southerland and the said Santa Rosa Bank.” The information closes in the usual form.
It will be perceived the second count fails to aver that the defendant passed as true the check “knowing the same to be false,” etc., as specified in section 470 of the Penal Code. No objection was taken to the information by demurrer or otherwise.
At the trial defendant by his counsel objected to evidence under the second count of the information upon the ground that said second count did not state a public offense, in that there was no allegation that defendant knew the check was forged.
The objection was overruled and an exception noted; evidence was received upon said second count. The [565]ruling of the court admitting such evidence is assigned as error.
To constitute forgery by uttering or passing a forged instrument as defined in section 470 of the Penal Code, three important factors are requisite: 1. It must be uttered, published, passed, or attempted to be passed, as true and genuine; 2. It must be known by the person uttering or passing it to be false, altered, forged, or counterfeited; 3. It must be with.intent to prejudice, damage, or defraud some person.
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