Appeal from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial.
The information is clearly defective, and the demurrer should have been sustained, as the allegation that "there was no such individual as M. Howell & Co. in existence" was insufficient. (Pen. Code, sec. 476; People v. Elliott , 90 Cal. 587; People v. Dowd , 4 P. C. L. J. 459.)
Clement, Cannon, Kline & Stradley, for Appellant.
Attorney General W. H. H. Hart, and Deputy Attorney General Charles H. Jackson, for Respondent.
The indictment is sufficient to satisfy the liberal form of procedure in this state. (Pen. Code, sec. 950, subds. 2, 959, 1258, 1404; Dunn v. People, 4 Col. 126; State v. Kimball , 50 Me. 409; Thompson v. State , 49 Ala. 16; People v. Harrold , 84 Cal. 567; People v. Mahlman , 82 Cal. 585; People v. Rozelle , 78 Cal. 84; People v. Tonielli , 81 Cal. 279; People v. O'Brien , 64 Cal. 53; People v. King , 27 Cal. 510, 511; 87 Am. Dec. 95.)
JUDGES: Harrison, J. Garoutte, J., and Van Fleet, J., concurred.
An information was filed in the superior court of the city and county of San Francisco against the defendant, charging him with "forgery," committed as follows: "The said W. L. Eppinger, on the thirteenth day of November, A. D. eighteen hundred and ninety-three, at the said city and county of San Francisco, state of California, with intent to defraud, did make and forge a certain fictitious instrument in writing for the payment of money, purporting to be signed by M. Howell & Co., and which said instrument in writing was and is in the words and figures following, to wit:
" No. 48 Clearing House, No. 2.
" San Francisco, Nov. 13, 1893.
" The Bank of British Columbia, San Francisco, Cal. Pay to W. L. Eppinger or bearer $ 36.00. Thirty-six/100 dollars.
M. Howell & Co.
" And on the back thereof was indorsed the name 'W. L. Eppinger.'"
Whereas, in truth and in fact there was no such individual as M. Howell & Co. in existence, as he, the said W. L. Eppinger, then and there well knew, and that the said instrument in writing was fictitious; and upon the trial thereof he was convicted and sentenced to the state prison for the term of fourteen years.
Section 476 of the Penal Code of this state makes special provision for the offense of making or passing a fictitious instrument in writing, and a distinction is thus made between the forgery of a check upon an existing person and the making and passing of a fictitious instrument purporting to be the check of a person who has no existence. In People v. Elliott , 90 Cal. 586, it was held that section 470 of the Penal Code does not include the matters contained in section 476, and that the act of making or passing a fictitious check can only be prosecuted when brought within the requirements and conditions of the latter section.
As the specific acts constituting the offense with which the defendant is charged are set forth in the information with sufficient clearness to show that the prosecution is under this section, the additional designation of the offense as "forgery" is immaterial. Forgery is a statutory offense, and the charge against the accused must be found within the terms of the statute. While by the criminal law of England the making of a fictitious check would be punishable as a forgery, the provisions of section 476 of the Penal Code show that it was the intention of the legislature of this state to render the making or passing of a fictitious instrument a distin ct offense with a designated punishment, and [38 P. 539] the prosecution in the present case is accordingly had under that section.
An indictment or information must contain matter which shows on its face that a crime has been committed by the accused. If the matters charged in the indictment or information are as consistent with the innocence of the accused as with his guilt the presumption of his innocence will overcome the accusation of guilt and the accused is not to be subjected to a trial of the charge. The essence of the offense created by the provisions of section 476 is the making, with an intent to defraud another, of an obligation of some "bank, corporation, copartnership, or individual," when in fact there is no such obligor in existence; but the mere charge of making and passing a check with the averment that there is no "corporation" in existence of the name by which the check purports to have been signed does not state an offense within the provisions of this section, unless it is also averred that the name signed to the check purported to be the name of a corporation. If the name signed to the check is as apparently that of a corporation as of a partnership it is necessary to allege which of the two it purports to be, and that the one so alleged has no existence; and an information equally fails to state an offense if it avers that there is no "individual" of the name signed to the check, unless the name by which the check purports to be signed is apparently that of an individual, or it is alleged that such name purports to be that of an individual. The allegation that the check was fictitious adds nothing to the statement of the crime unless the statutory particulars in which it is fictitious are also alleged. The statute designates four classes of obligors whose signature may be attached to a fictitious instrument, and, unless the signature purports to be that of one of these classes, it is not within the provisions of the statute. Moreover, the defendant has the right to be informed which of these classes of obligors is claimed to have been assumed by him.
The information in the present case does not aver that the name of "M. Howell & Co.," signed to the instrument, purports to be that of an individual, and as such signature is not presumptively or in legal contemplation that of an individual, the subsequent averment that there is no such "individual" as M. Howell & Co. does not charge an offense within the terms of section 476. "M. Howell & Co." may be the name of either a partnership or a corporation, or it may be the name under which an individual does the business of a bank, and, for the purpose of charging an offense against the accused, the information would have been equally defective if it had alleged that there was no partnership in existence by that name, and had not also alleged that there was no corporation in existence by that name.
If it be assumed that the averment in the information that there is no such individual in existence as M. Howell & Co. sufficiently alleges the fictitious character of the instrument, there was no evidence in support of this averment, the only evidence of the fictitious character being that there was no such "firm" in existence. There was no evidence offered tending to show that there was no corporation or partnership by that name, or that M. Howell & Co. was in any other respect a fictitious name, or that there was no individual doing business by that name. But conceding that in common parlance the term "firm" is equivalent to "partnership," if that was the fictitious character of the instrument which the defendant was to be tried for making and passing, it should have been so charged in the information. The charge in the information would have been as well sustained by proof that there was no corporation by that name, as by proof that there was no firm by that name. In either case the actual charge which is made in the information would not be sustained by the proofs.
The city directory, showing therefrom that this name did not appear therein, was competent for the purpose of proving that there was no such firm as M. Howell & Co. (State v. Hahn, 38 La. Ann. 169), and it was also competent to prove by the police officer that he had made inquiries for such a firm without success. (People v. Sharp , 53 Mich. 523.) The character of the directory, and the extent of the inquiries, might affect the weight, but not the competency, of the evidence. The testimony of the teller in the bank on which the check was drawn that no firm by the name of M. Howell & Co. kept or had any account in his books, was prima facie evidence of the fictitious character of the check. (Rex v. Backler, 5 Car. & P. 118; Rex v. Brannan, 6 Car. & P. 326; 3 Greenleaf on Evidence, sec. 109.)
The judgment and order are reversed, and cause remanded to the superior court.