People v. Munroe

HAYNES, C. The defendant was convicted of forgery, and this appeal is from the judgment and from an order denying his motion for a new trial. Appellant’s principal contention is that the information does not state facts which constitute a public offense, for the reason that the forged instrument would, if it were genuine, be void upon its face. Said instrument is as follows:

“No. 78. Los Angeles, Cal., Feb. 1, 1892.

“To the city of Los Angeles, Cal.:

“Please deliver to the State Investment Co., or order, my warrant upon the treasurer of said city for the month of February, 1892; and I hereby authorize the State Investment Co., or order, to receipt for and collect the sum of $80 due me as teacher; and, for value received, I hereby sell, assign, and set over to the State Investment Co., or order, the sum of $80, with interest at the rate of ten per cent, per month from March 2, 1892, and I guaranty payment of the above-stated amount on or before March 2, 1892, authorizing the State Investment Co., or order, to collect any warrants drawn in my favor until the amount of this claim and interest are paid in full, and, in case suit is instituted, to collect this claim or any portion thereof, I promise to pay such additional sum as the court may adjudge reasonable as attorneys’ fees in said suit.

‘ ‘ [Signed] HELEN HENRY. ’ ’

The information charges that defendant forged said instrument with intent to defraud one J. W. Jackson, to whom he transferred it by indorsement.

[68]It is well settled in this state and elsewhere that the indictment or information must show that the forged instrument is such that, if genuine, it could be made available in law to work the intended fraud or injury; that, if it is a nullity upon its face, no case is made, unless by averment it can be shown how it could be made to operate injuriously or fraudulently: People v. Tomlinson, 35 Cal. 506; People v. Ferris, 56 Cal. 445; Ex parte Finley, 66 Cal. 262, 5 Pac. 222. It is also well settled that the unearned salary of a public officer is not assignable, because against public policy, and that any instrument intended to operate as such assignment is void: Bangs v. Dunn, 66 Cal. 72, 4 Pac. 963; Bliss v. Lawrence, 58 N. Y. 422, 17 Am. Rep. 273. This principle, however, is not confined to those commonly called “public officers,” though we think teachers in the public schools may be properly designated as such. Their employment is a public one, made under the authority of law, and their compensation is paid out of public funds provided by law for that purpose: See Pol. Code, secs. 1696-1704. In Arbuckle v. Cowtan, 3 Bos. & P. 328, quoted with approval by the court of appeals of the state of New York in Bliss v. Lawrence, supra, it was laid down as a general principle “that all such profits as a man receives in respect to the performance of a public duty are from their very nature exempt from attachment and incapable of assignment.” The attorney general, on behalf of the people, does not controvert either of the foregoing propositions, but contends that the instrument in question is something more than an assignment of the unearned salary of a teacher; that it contains a guaranty of the payment of the moneys there mentioned ; that Helen Henry had a right to make such guaranty; and that it could be legally enforced. This contention we think is sound, and must be sustained. There is nothing criminal in the assignment of the unearned salary. It is simply void because it is against public policy. The officer whose duty it is to draw the warrants for teachers’ salaries was not bound to regard the assignment, or to issue the warrants to the assignee. Notwithstanding the assignment he could, without creating any liability against himself or the city, issue the warrant to the teacher. This would seem to have been a contingency understood or anticipated, and as a protection to the assignee the guaranty was inserted. The test