Opinion
Crim. No. 47.
July 19, 1906.
APPEAL from a judgment of the Superior Court of Alameda County, and from an order denying a new trial.
The facts are stated in the opinion of the court.
W. Lair Hill, for Appellant.
U.S. Webb, Attorney General, for Respondent.
The information herein filed against the appellant charges him with having willfully and feloniously uttered and passed to Charles E. Noyes a certain false, forged and counterfeit check as the true and genuine check of the purported maker thereof, knowing the same to be false, forged and counterfeit, with the intent to defraud the said Noyes, "which said check is in the words and figures as follows, to wit:
"Central Bank. Savings and Commercial.
"No. 90.
"Oakland, Cal., June 3rd, 1905.
"Pay to Arthur Crane or bearer $18 eighteen dollars.
"(signed) D. J. HALL,
"Trustee Hutchinson Estate."
— and which was indorsed on the back thereof as follows: "Arthur Crane." Upon the trial thereof the defendant was convicted of the crime of forgery, and has appealed from the judgment thereon and from an order denying a new trial.
1. The defendant demurred to the information on the ground that the facts stated therein do not constitute a public offense; and that the information does not state the particular circumstances of the alleged offense charged. No suggestion is made that any circumstances connected with the offense other than those stated are "necessary to constitute a complete offense"; and unless such is the fact the information is not demurrable under the provisions of section 952 (2), Penal Code.
It is urged, however, by the appellant that, as the information states that the instrument charged to have been uttered by him and passed to Noyes had the word "(signed)" prefixed to the name of D. J. Hall, it appears upon its face that it was not the true and genuine check of Hall, but only a copy of the check purporting to have been made by him, and therefore that Noyes could not have been damaged or prejudiced by receiving it. It is without question a very unusual mode of drawing a check for the maker thereof to prefix his signature with the word "signed"; but as it cannot be said that a check could not be drawn in this form, or that if so drawn such prefix would in any respect qualify the liability of the drawer, it cannot be assumed as a matter of law that the prefix did not purport to have been written by him before its delivery. Under the charge in the information that the entire instrument as set forth therein was false and forged, and that the defendant passed the same well knowing that it was false and forged, it must be held that the word "signed" was included in the information as being a portion of the written instrument which the defendant is charged with having passed as the true and genuine check of Hall. The demurrer was therefore properly overruled.
2. At the trial the prosecution offered in evidence in support of the charge a check identical in form with that set forth in the information, except that the word "(signed)" was not written thereon. The defendant objected to its introduction upon the ground that it was not the same instrument which is charged in the information to have been uttered by him. The court overruled this objection and allowed the check to be read to the jury, to which ruling the defendant excepted.
There was no error in this ruling. The rule which in early days prevailed in prosecutions for forgery, that the instrument set forth in the indictment must be an exact copy of that offered in support of the charge, has been in modern days relaxed to the extent that, unless the variance is such that the defendant may have been prejudiced in making his defense, or exposed to the danger of being again put in jeopardy for the same offense, it will be held to be immaterial. (See People v. Phillips, 70 Cal. 61, [11 P. 493].) The requirement that the instrument offered in evidence must conform to that laid in the indictment has reference to its identity and the manner in which it is described. If its identity is so apparent that a conviction or acquittal of the defendant would be a bar to any further prosecution for the same offense, the variance will be insufficient to justify its exclusion. The presence or absence of unimportant words which do not affect the sense of the instrument, or change its identity in any material respect, will not constitute a material variance.
In People v. Wilson, 5 Park. Cr. Rep. 178, upon a trial for the forgery of a promissory note, the note offered in evidence had upon its face the words "Countersigned and registered in the Bank Department," with the signature of the register, A.D. Ward, which were not upon the copy set forth in the indictment The variance was held immaterial on the ground that those words formed no part of the note. In State v. Alexander, 28 Tex. App. 186, [12 S.W. 595], the instrument set forth in the indictment was as follows, viz.: "Mrs. A. C. Neal. Please send me my diploma by this young man (meaning T. S. Alexander). (signed) W. W. Wolfe." The instrument offered in evidence did not contain the words included in the parentheses; but the court held that those words inserted by way of innuendo did not constitute a material variance. In People v. Cross, 47 Ill. 152, [95 Am. Dec. 474], defendant was indicted for the forgery of a check purporting to have been made by C. H. Beckwith. The check offered in evidence was signed "C. H. Beckwith" with the word "Randolph" underneath. The variance was held to be immaterial upon the ground that the word "Randolph" did not explain itself, and might be a check word or the name of the street in which Beckwith did business. In People v. Trask, 151 Ill. 523, [38 N.E. 248], the indictment for the forgery of a draft set forth a copy of the instrument purporting to have been drawn upon "C. C. Burt Co., 115 Broadway." The instrument offered in evidence purported to have been drawn upon "C. C. Burt Co., Broadway, New York." The court held the variance to be immaterial upon the ground that those words were only a mere description of the drawee's residence and not a part of the instrument. (See, also, People v. Cummings, 57 Cal. 88; People v. Paige, 6 Park. Cr. Rep. 683; People v. Langdale, 100 Ill. 263; Commonwealth v. Sutton, 97 Ky. 308, [30 S.W. 661]; State v. Smith, 29 Fla. 408, [10 So. 894].)
This subject was quite fully discussed in People v. Phillips, 70 Cal. 61, [11 P. 493], and in People v. Terrill, 132 Cal. 495, [ 64 P. 894], and many authorities are there cited in support of the above proposition. In People v. Phillips, the court say: "We think the true rule is that if the variance does not change the sense in any way it is not material"; and again: "When in the indictment a word found in the instrument proved is omitted from the instrument as recited, or when a word is inserted in the instrument described which is not in the instrument proved, and the change in no manner or for any purpose alters the signification, the variance is unimportant."
The identity of the check in question with that laid in the indictment is so apparent that the court was fully justified in receiving it in evidence. If the word "signed" had been in fact written as a prefix to the name of Hall in the instrument which was passed by the defendant it would not have changed the character of the instrument or in any respect varied its legal import or the apparent obligation of the maker.
3. The several objections of the defendant to the evidence as it was offered, on the ground that the indictment stated no offense, require no further consideration. The objection to the question asked of the witness D. J. Hall, whether he had an account in the Central Bank of Oakland during the month of June, 1905, on the ground that it was "incompetent" was properly overruled. The question asked of the same witness, whether he, as trustee of the Hutchinson estate, had drawn a check payable to the defendant, was immaterial, and should have been sustained by the court; but it is very evident that the answer of the witness, that he had at different times paid him his salary in checks, could in no respect have been prejudicial to the defendant, especially in view of the testimony that the defendant, after his arrest, admitted that the check offered in evidence was forged by him.
4. It was not error to inform the jury that they were to accept the law as given to them by the court, or, in instructing them upon the law applicable to the case, to read to them the provisions of section 470, Penal Code, defining forgery. It was proper that they should be instructed that the uttering of a forged instrument by the defendant as true and genuine, with the knowledge that it was a forgery and with the intent to defraud, would constitute the crime of forgery as fully as would a forgery itself of the instrument.
The judgment and order are affirmed.
Cooper, J., and Hall, J., concurred.