People v. Tomlinson , 1868 Cal. LEXIS 119 ( 1868 )

By the Court, Sanderson, J.:

The defendant was indicted under the statute against forgeries, for “ uttering, publishing, passing, or attempting to pass,” a certain forged instrument in writing, with intent to defraud Jerry Inman and Archibald Campbell. The instrument is set out in the indictment, and denominated a contract. The defendant demurred to the indictment upon the grounds, first, that it does not state facts sufficient to constitute the crime charged, for the reason that upon its face the instrument is null and void in law, and no extrinsic facts by which it can be made operative and effectual in law for any purpose, as against Inman and Campbell, or either of them, are averred; second, that the indictment is not certain and direct, the offense being charged in the alternative. The demurrer was overruled and a trial had, which resulted in a conviction. Several points were made and exceptions taken during the trial, which, in view of the conclusion we have reached upon the demurrer, we shall find no occasion to consider.

The purpose of the statute against forgeries is to protect society against the fabrication, falsification, and the uttering, publishing, and passing of forged instruments, which, if genuine, would establish or defeat some claim, impose some duty, or create some liability, or work some prejudice in law to another in his rights of person or property. Hence, without much conflict, if any, it has been held from the outset that the indictment must show that the instrument in question can be made available in law to work the intended fraud or injury. If such appears to be the case upon the face of the instrument, it will be sufficient to set it out in the indictmeut; but if not, the extrinsic facts, in view of which it is claimed that the instrument is available for the fraudulent purpose alleged in the indictment, must be averred. If the indictment merely sets out an instrument which is a nullity upon its face, without any averment showing how it can be made to act injuriously, or fraudulently, by reason of matter aliunde, no case is made. This rule is so well settled by the precedents, that we do not feel called upon to discuss it upon, principle. (Rex v. Knight, 1 Salk. 375; 1 Lord Raym. 527; Regina v. Marcus, 2 Carr. & Kir. 356: People v. Shall, 9 Cowen, 778; People v. Harrison, 8 Barb. 560; State v. Briggs, 34 Vt. 501; Commonwealth v. Ray, 3 Gray, 441; Barnum v. The State, 15 Ohio, 717; Clarke v. The State, 8 Ohio St. 630.) These cases establish the doctrine that, to constitute forgery, the forged instrument must be one which, if genuine, may injure another, and that it must appear from the indictment that such is its legal character, either from the recital or description of the instrument itself, or, if that does not show it to be so, then by the averment of matter aliunde, which will show it to be of that character.

There is nothing in the case of The People v. Frank, 28 Cal. 507, which is opposed to this doctrine. Following the lead of English cases, we there held that, to complete the offense of forgery, it was not necessary that the forged paper should appear to have been stamped. The grounds of the distinction is, that the stamp constitutes no. part of the instrument, and the want of it does not, therefore, render the instrument absolutely null in law, if otherwise valid, and it may, therefore, be made available for the purpose intended without the stamp. (Hallock v. Jaudin & Co., 34 Cal. 167.)

The contract, so called, set out in the indictment, purports to have been made and executed by Inman alone, acting for himself and copartner, Campbell. It is not signed by the defendant. It contains several promises; but it not only expresses no consideration for any of them, but expressly provides that some of them shall be performed without charge. It contains matter, it is true, which indicates that there may be some other agreement between Inman and Campbell on the one side and the defendant on the other, which, taken with it, might or might not show it to be a valid instrument, if genuine, by which some liability could be cast upon Inman at least, or his rights in some way prejudiced. But what the character of that agreement is, is not stated, and it is therefore impossible to say whether it would have the effect to render the instrument in question valid if genuine. Therefore, for aught that appears upon the face of the instrument, the promises and undertakings are all on one side. On the part of the defendant there is no promise or undertaking whatever, either to pay money, transfer property, release a claim, or perform an act. It is not a negotiable mercantile paper; it has no seal, and expresses no consideration. It is, therefore, from aught that appears in the indictment, a nudum pactum, and, therefore, utterly ineffectual in law for any purpose. Of such an instrument, upon its face, as we have seen, forgery cannot be predicated; and it is not pretended that any matter aliunde, adding to the face of the instrument, is alleged in the indictment.

The remaining objection taken by the demurrer relates to the use of the word “ or,” instead of “ and,” in the charging part of the indictment, which is in the following words: “ * * * did falsely, feloniously, wilfully, knowingly, and unlawfully utter, publish, and pass, or attempt to pass,” etc. The language of the statute defining the offense is : “ shall utter, publish, pass, or attempt to pass,” etc.

Where the statute enumerates several acts disjunctively, which separately or together shall constitute the offense, the indictment, if it charges more than one of them, which it may do, and that, too, in the same count, should do so in the conjunctive; as for instance: “ did utter, publish, pass, and attempt to pass,” etc. (People v. Ah Woo, 28 Cal. 205; People v. Frank, 28 Cal. 513.) And it has been accordingly held that indictments containing disjunctive allegations, as that he murdered or caused to be murdered, forged or caused to be forged, burned or caused to be burned, sold spirituous or intoxicating liquors, conveyed or caused to be conveyed, were bad for uncertainty. (2 Hawk. Chap. 35, Sec. 58; Rex v. Stocker, 1 Salk. 342; People v. Hood, 6 Cal. 236; Com. v. Grey, 2 Gray, 501; Rex v. Stoughton, 2 Str. 900.) In The United States v. Potter, 6 McLean’s C. C. 186, however, it was held, that “ cutting or causing to be cut ” was not fatal.

But this rule, that the conjunctive form of averment must be adopted, does not apply to cases where the words of the statute are synonymous, (State v. Ellis, 4 Mo. 474,) for, where such is the case, there is but one act described. The words “utter” and “publish,” in the law of forgery, are synonymous, for the meaning of both is “to declare or assert, directly or indirectly, by words or actions,” that the forged instrument is genuine. Thus, to offer a forged bank note in, payment, is both to utter it and to publish it. To complete the offense of uttering and publishing, it is not necessary that the note should be passed. Hence “to pass” is not synonymous with “ uttering ” and “ publishing; ” nor is “ attempting to pass” synonymous with “passing.” (Commonwealth v. Searle, 2 Binney, 338.)

Our conclusion is, that the Court below erred in not sustaining the demurrer upon both grounds.

Judgment reversed and cause remanded, and ordered that the remittitur issue forthwith.

Mr. Justice Crockett expressed no opinion.