People v. Turner

Henshaw, J. The defendant was convicted of the crime of forgery, and from the judgment and from the order denying him a new trial prosecutes these ap[280]peals. The information, it is admitted, contained two counts. By the first it is charged that the defendant, having in his possession a deed of a piece of realty made and executed by one Lizzie O’Donnell to J. P. Frenna, did “willfully, unlawfully, knowingly, feloniously, falsely, and fraudulently make and forge on the back of said deed a certificate in the handwriting of T. A. Bell, recorder of Fresno county, of the recordation of said deed.in the county records of said county of Fresno, which said false, fraudulent, and forged certificate purported to recite that the aforesaid deed had been, to wit, on the twenty-second day of September, A. D. 1892, filed in the office of the county recorder of said county of Fresno for record, and had been recorded in the county records of said county, at a time, in a book, and at a certain page, specified in said false, fraudulent, and forged certificate and handwriting, and which said false, fraudulent, and forged certificate purported to be signed by said T. A. Bell, recorder of said county of Fresno.” By the second count it is charged that the defendant, “ well knowing said pretended certificate to be false, fraudulent, and forged, did then and there, to wit, on the fourth day of October, 1892, at the city and county of San Francisco, state of California, willfully, unlawfully, knowingly, falsely, fraudulently, feloniously, and with intent to defraud J. P. Frenna, of the city and county of San Francisco, utter, publish, and pass the same to said Frenna as genuine and true.” The information is framed under section 470 of the Penal Code. It is contended that the act complained of is not embraced therein, nor known to our law as a forgery. We think, however, that section 470 is broad enough to cover the offense here charged. By the terms of that section one who “ counterfeits or forges the seal or handwriting of another ”. is guilty of forgery. Fraud and deceit are essential elements to the crime, and unless the counterfeited handwriting be of such a nature that someone might possibly be defrauded by it, the mere fact that it is a false wuiting is not sufficient [281]to constitute an offense. But, on the other hand, if the counterfeit writing might possibly deceive another, and was prepared with intent to deceive and defraud another, then it becomes immaterial whéther any person was actually injured or not. (1 Wharton’s Criminal Law, sec. 743; 2 Russell on Crimes, 9th ed.,