People v. Ellenwood

Cbiminal Law—Making Fictitious Check—Pleading—Sufficiency of Infob . mation—Nonexistence of Pbbtended Makes—TTncebtainty—Waives .of Objection.—An information charging the defendant with making and forging a fictitious check, payable to his order, and indorsing the same with intent to defraud a person named, “whereas in truth and in fact there was and is no such bank, corporation, copartnership, or individual,” as the assumed maker of the check, as defendant “then and there well knew, and that the said instrument was fictitious,” sufficiently states a public offense; and the most that can properly be said in reference to the question as to what time the expression “was. and is” relates is that that expression is lacking in the requisite certainty, but such objection can only he taken by demurrer, and when not so taken is waived, and cannot avail the defendant upon appeal from the judgment.

Id.—Second Count in Infobmation—Joindeb of Offenses—Refebence to Fibst Count not Pebmissible.—An information which in fact contains two counts should charge the defendant in the second count as if he had committed a distinct offense, it being upon the principle of the joinder of offenses that the joinder of counts is admitted; and such information cannot omit material allegations and import them from the first count by referring to them by the use of the word “said.”

Id.—Ohabge of Making and Passing Fictitious Note in One Count.—Although either the making or the passing of a fictitious check with intent to defraud the same person would constitute an offense under section 476 of the Penal Code; yet when referring to the same instrument, and charging the same intent they constitute but one offense, and may be properly charged in a single count; and in such case there is neither necessity nor propriety in repeating the allegations of the making of the check, and of the nonexistence of the fictitious person whose name is signed to the check in connection with the allegation of the passing of the check.'

' Id.—Imfbopbb. Instbuction—Tncobbbct Statement of Evidence—Unau-Ihobized Conclusion of Fact.—Where the defendant testified that he met Dalton, the maker of the note, in San Francisco, had known him in Los Angeles, and that he resided in New York; evidence for the prosecution that his name was not in the directory of San Francisco, and the testimony of a policeman that the defendant told him that there was no such man in San Francisco, are consistent with the testimony of the defendant; and a statement in the charge of the court referring to the testimony of the policeman, that the prosecution “have brought here a witness who undertakes to tell you that the defendant admitted to him that Dalton was a mere fiction,” is not a statement of the evidence, but of an unauthorized conclusion of fact drawn by the court from the evidence, and is in violation of the constitutional provision that “judges shall not charge juries with respect to matters of fact.”