Summary
In People v. Baker, 100 Cal. 188, the mortgage set out in the information did not include the certificate of acknowledgment as did the mortgage introduced in evidence, and it was held no variance.
Summary of this case from People v. ChretienOpinion
Rehearing Denied.
Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.
COUNSEL:
J. G. Peck, and S. M. White, for Appellant.
Attorney-General W. H. H. Hart, for Respondent.
JUDGES: In Bank. McFarland, J. Garoutte, J., Paterson, J., Harrison, J., Fitzgerald, J., and De Haven, J., concurred.
OPINION
McFARLAND, Judge
The defendant was charged with and convicted of the crime of forgery, and appeals from the judgment and also from an order denying a motion for a new trial.
The appellant makes a great many points in his briefs, and elaborately argues them; and we will notice briefly what we consider the most important of such points.
1. Appellant contends that the information is fatally defective because the word "information" is not used in the body of that pleading. The word "information" appears as a heading of the pleading, and the body of the pleading commences as follows: "The said Edward L. Baker is accused by the district attorney," etc. But, as the pleading alleges all the facts necessary to constitute the crime sought to be charged, it is not defective merely because the word "information" is not used in the body of the instrument. The variation from the usual form was, we presume, the effect of oversight, or, perhaps, of an unexplainable desire to take a new departure; but this variation is not sufficiently material to make the pleading invalid.
We think, also, that the averment of venue is sufficient; the words "county of Los Angeles, state of California," having been used in the first part of the information, it was sufficient afterwards to allege that the crime was committed "at the county and state aforesaid."
2. The alleged forgery was of a certain mortgage, purporting to have been signed by one Morris M. Green; and it is contended by appellant that because said Green was a married man, and there was a homestead declaration on the property covered by the mortgage, therefore no forgery in law could be committed by signing the name of Green alone to the instrument. But if the instrument was falsely made in the name of Green, with intent, as is alleged in the information, to defraud the said Morris M. Green and one Strassforth, from whom the money was to be borrowed on the mortgage, the act was forgery, whether or not, as a matter of law, the mortgage would have been good without the execution of it by both husband and wife.
The mortgage was placed on record in the recorder's office by the appellant, or by one Hoy, who was the principal in the alleged crime, because Strassforth, who was to loan the money on the mortgage, desired it to be placed on record before he examined the title; and we think that, under the circumstances, this was a sufficient uttering of the alleged forged instrument, although it was not in any other way delivered to Strassforth, who about that time began to suspect the fraud.
3. The mortgage introduced in evidence had attached to it a certificate of acknowledgment; while the copy of the mortgage set forth in the information did not have such certificate. We do not think that this was a fatal variance.
4. The mortgage as set forth in the information contained a copy of a promissory note which it was given to secure; and we do not think that the court erred in allowing proof of the signing of the note as well as the mortgage. They were both parts of the same transaction, and one was preliminary to the other.
5. We have examined the instructions given to the jury by the court and those asked by defendant and refused; and we do not see any errors committed by the court in [34 P. 650] the matter of instructing the jury. Of the instructions asked by the defendant and refused those which were correct were given in other parts of the charge.
6. There are a great many exceptions in the record to the rulings of the court upon the admissibility of evidence; but we see no material error committed by the court in such rulings.
7. The most serious point made by appellant is, that during the progress of the trial the court unnecessarily and unjustly censured the attorney of appellant, and applied to his conduct of the case improper adverse criticism, and thus prejudiced the jury against the attorney, and therefore against appellant. This contention has certainly some plausible reasons for its support; but, after a full consideration of the whole matter, we do not think that what passed from the court to appellant's counsel was of sufficient impropriety or importance to warrant us in setting aside the verdict.
The great difficulty with an appellate court in determining such a question is to learn from a dry, printed transcript the true character and quality of the thing complained of. It is not photographed before us; and we cannot know the tone, the emphasis, the expression, the manner with which the thing was said or done. The language complained of related mainly to what the court considered an unnecessary consumption of time by appellant's counsel in examining and cross-examining witnesses, making objections, etc. The court no doubt might have confined counsel within proper limits of time in conducting the defense by the use of less harsh language; but that nice mingling of the fortiter in re and the suaviter in modo, which would enable a presiding judge to always keep in hand the orderly conduct of a trial without an occasional jerk, is not to be often expected. Counsel for appellant seems to have been entirely respectful in his manner to the court; but his repetition of questions, many of which were pointless, was a useless waste of time. Some of the witnesses for the people had been examined on a previous trial of another person for the same offense, and upon a preliminary examination before a magistrate; and counsel for appellant asked them a great many questions about what they had testified on those former occasions. This was proper, of course, if there had been an apparent intent to show a difference between their former and their present testimony; but most of the questions were whether or not they had said things on the former occasions which were exactly the same things to which they had just then presently testified. All this was no doubt trying to the patience of the court; and while some of the language used by the court to counsel is not at all to be commended, we do not think that, considering the whole case, the appellant was prejudiced or injured thereby.
There are no other points necessary to be considered.
The judgment and order appealed from are affirmed.