Opinion
Department One
Appeal from a judgment of the Superior Court of San Diego County.
COUNSEL:
Attorney-General Johnson, for Appellant.
J. M. Lucas, and W. R. Guy, for Respondent.
JUDGES: Fox, J. Paterson, J., and Works, J., concurred.
OPINION
FOX, Judge
In People v. Frank , 28 Cal. 513, it was held that "where a statute enumerates a series of acts, either of which separately, or all together, may constitute the offense, all of such acts may be charged in a single count, for the reason that, notwithstanding each act may, by itself, constitute the offense, all of them together do no more, and likewise constitute but one and the same offense." To the same effect is People v. De la Guerra , 31 Cal. 459, and People v. Tyler , 35 Cal. 553.
It follows that the allegation in this indictment of each one of the series of acts named in the statute, either one of which would constitute the crime of forgery, is not the allegation of two offenses, because all constitute but the single crime, under section 470 of the Penal Code.
But the court below probably held that the indictment charged two offenses, because, in the latter part thereof, the pleader charges the defendant with having offered "the said instrument for record at the office of the county recorder of the county and state aforesaid, and then and there causing the same to be recorded as a record in said office."
The instrument purports to be an assignment of an interest in certain letters [24 P. 107] patent for an invention. There is no law authorizing the recording of such an instrument in the office of the county recorder, or making it a public record when so recorded. Section 1160 of the Civil Code, cited by respondent, has no application. It relates only to the recording of letters patent affecting the title or possession of real property. Section 115 of the Penal Code, which makes it a felony to procure to be recorded a false or forged instrument, makes it so only when the instrument, if genuine, might be filed, registered, or recorded under the law of the state. As this instrument, if genuine, would not be entitled to be recorded under the law of the state, it was not a felony to offer it for record, or to cause or procure it to be recorded, and it leaves but the one offense charged by the indictment, -- that of forgery. All the matter about recording is mere surplusage, and may be disregarded.
The material portions of this indictment are in the language of the statute, and are sufficient. (People v. Lewis , 61 Cal. 366; People v. Henry , 77 Cal. 445; People v. Rogers , 80 Cal. 209; People v. Keeley , 80 Cal. 212.)
Judgment reversed, and case remanded, with instructions to overrule the demurrer.