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Criminal law and procedure of California including the penal code of California online

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or penalty, or whereby any benefit migh accrue to
any other person.^ To personate another is to assumt to be
that other person : the mere signing of the name of another
is not personating him. It is essential that the defend-
ant actually personated or assumed the character of
another.^ It does not include the falsely assuming an
official character, but is intended to cover acts done by one
person while representing himself to be another and differ-
ent person.*

. PENALTY.

If for marriage, or pretended marriage, imprisonment in
state prison not exceeding five years.*^ If for receiving
money or property, same as larceny. Other personations
whereby any benefit might accrue, imprisonment in county
jail not exceeding two years, or fine not exceeding five
thousand dollars.*

FORM FOR MARRYING IN AN ASSUMED NAME.

Wilfully, unlawfully, falsely, and feloniously did per-
se nate and represent himself to be one C D, and in such
assumed character did then and there marry one E F.

1 Penal Code 528.

2 Penal Code 529.

3 People V. Maurino, 77 Cal. 436.
* People V. Knox. 119 Cal. 73.

5 Penal Code 528.
« Penal Code 529.



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150 CRIMINAL LAW AMD PROCKDURB.

FORM — FOR PERSONATING BAIL.

Wilfully, unlawfully, falsely, and feloniously did person-
ate and represent himself to be one C D, and in such
assumed character did then and there become bail and
surety for one E F, in the name of said C D, in the Superior

Court of California, in and for the county of , in a

certain action then pending in said court in which

was plaintiff and was defendant.

FORM — FOR ACKNOWLEDGING A DEED IN THE NAME OF
ANOTHER.

Wilfully, unlawfully, falsely, and feloniously did per-
sonate and represent himself to be one C D, and in such
assumed character, did then and there acknowledge before
(Mie E F, who was then and there a notary public in and for

said county of , duly commissioned and sworn, the

execution of a certain deed and conveyance of land, situ-
ate in said county, from the said C D to one G H, with
intent that the same might be recorded, delivered, and used
as true.

FORM — FOR OBTAINING PROPERTY BV FALSELY PERSONATING

ANOTHER.

Wilfully, unlawfully, falsely, and feloniously did per-
sonate and represent himself to be one C D, and in such
assumed character, did then and there unlawfully and
feloniously receive from one J D, ac certain horse, of the

value of dollars, which said horse was by said

J D, intended to be delivered to the said C D.



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CHAPTER XXV.



FALSB F>REXENSES.

[Penal Code, sec. 532.]



DEFINED.

"The language of the code defining the ofiFense is:
'Every person who knowingly and designedly by false or
fraudulent representation or pretenses defrauds any other
person of money or property, or who causes or procures
others to report falsely of his wealth or mercantile char*
acter, and by thus imposing upon any person obtains credit,
and thereby fraudulently gets into possession of money or
property, is punishable in the same manner and to the
same extent as for larceny, of the money or property
so obtained/ "

"Similar provisions, varying slightly in verbiage, but hav-
ing a conmion purpose, are to be found in the statutes of
every state of the union, so far as our investigation extends,
and like their English prototypes, the earliest of which
is 30 George II, chapter 24, section I, are the outgrowth
and expansion of the old offense of 'cheats* or 'cheating' as
it existed at the early common law proper. * * ♦
Cheating at common law was a fraud perpetrated by means
of a false symbol or token, such as selling goods by false
weights or measures, or other like act or thing of a char-
acter calculated to deceive and defraud the public or the
individual to their pecuniary injury, and against which
ordinary prudence could not guard. The inadequacy of
this offense to meet the demands of advancing methods of
trade arose in part from the fact that it did not embrace
any act or thing accomplished without the aid of some
false token. Mere spoken lies or misrepresentations, or



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152 CRIMINAL LAW AND PROCEDURK.

verbal perversions of the truth of whatsoever nature,
employed to defraud, did not constitute the offense ; and it
was in part to remedy this defect or omission that the stat-
utes creating the offense of false pretenses were enacted,
and which, by reason of their wider comprehension of the
arts and methods of cheating, have largely superseded the
common law offense."

"In their origin both the common law and the statutor}-
offenses were undoubtedly designed and aimed solely at
protecting personal property, and in aid of the laws
against larceny and theft. Indeed, they appear to have
sprung into being largely by reason of certain defects in the
application of the laws against larceny. Among the rea-
sons stated in the statute^ for enlarging the offense of
cheating are that 'many light and evil-disposed persons,
not minding to get their living by truth, etc., but compass-
ing and devising daily how they may unlawfully obtain and
get into their hands and possession goods, chattels, and
jewels of other persons for the maintenance of their
unthrifty living, and also knowing that if they came to
any of the same goods, chattels, and jewels by stealUi,
then they, being thereof lawfully convicted, etc., shall die
therefore — have now of late falsely and deceitfully con-
trived, devised, and imagined privy tokens and counterfeit
letters in other men's names, unto divers persons their spe-
cial friends and acquaintances, for the obtaining of money,
goods, chattels, and jewels of the same persons, their
friends and acquaintances; by color whereof the said light
and evil-disposed persons have deceitfully and unlawfully
obtained and gotten* great substance of money, goods, chat-
tels, and jewels into their hands and possession, contrary
to right and conscience,' etc. ; and in one of the early stat-
utes relating to false pretenses, it is recited that, whereas,
*a failure of justice frequently arises from the subtle dis-
tinction between larceny and fraud,' etc.— one ot which
distinctions being that when property was obtained by con-
sent of the owner intending to part with the title, although

1 33 Henry VIII.



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VAL8B 'PRBriCNBB. 168

by the grossest fraud, it would not constitute larceny."* To
constitute this offense four things must be shown: (i) An
intent to defraud; (2) actual fraud committed; (3) false
pretenses used for the purpose of perpetrating the fraud;
and (4) the accomplishment of the fraud by means of the
false pretenses made use of for the purpose. The false
pretenses must be the cause which induced the owner to
part with his property.'* The party defrauded must have
relied upon the representations.^ There must be also a
knowledge on the part of the accused that the representa-
tions were false.'

WHAT IS A FALSE PKETENSE.

A false pretense is a representation of some fact or cir-
cumstances calculated to mislead, which is not true; or
rather such a fraudulent representation of an existing or
past fact, by one who knows it not to be true, as is adapted
to induce the person to whom it is made to part with some-
thing of value. The pretense need not be in words, but
may be gathered from the acts and conduct of the party.*
If the contract is induced by false pretenses, the property
received under such a contract is obtained thereby,^ but the
offense may be committed although the party suffers no
loss, by reason of the fact of afterwards obtaining the prop-
-erty again. The parting with the property on the strength
of the pretenses is the gist of the offense.* Deception,
deliberately practiced, for the purpose of obtaining unfair
advantage of another is fraud, and q-oods obtained thereby
are obtained by fraud, and one deprived of his property by
such means is defrauded.® The intent of the person
defrauded is not material. The offense is against the pub-
lic and not ac^ainst the individual, ^"^ and the carelessness of

2 People V. Cummings. 114 Cal. 437.

^ People V. Wasservogle, 77 Cal. 175; People v. Jordan. 66

Cal. 10; People v. Bryant, 119 Cal. 595
* People V. Glbbs. 98 Cal. 661.
6 People V. Millan, 106 Cal. 320.
« People V. Wasservogle, 77 Cal. 173.
f People V. Martin, 102 Cal. 558.
» People V. Bryant, 119 Cal. 595.
People V. Nesbltt, 102 Cal. 327.
10 People v. Martin, 102 Cal. 558.



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164 CRIMINAL LAW AKD PROCEDURE.

the defrauded party in signing the note is not an element
in the case. Thus, where prestidigitation or juggling hav-
ing been practiced in the exchange of the note for another
paper which the defrauded person believed he was signing^
lack of care, or gross negligence, cannot -be imputed to him
in signing the note, under the false pretense and repre-
sentation that he was signing another paper." Mere
expression of opinion does not amount to a false repre-
sentation ;^* neither do tricks of the trade, nor exaggerated
statements as to the value of the property, etc., for the
customer is presumed to have knowledge of these mat-
ters.** But the doctrine of caveat emptor, as known in
civil cases, does not apply. The guilt does not depend
upon the degree of folly or credulity of the person
defrauded, but it is proper to inquire whether the repre-
sentations were of a character to induce belief in the mind,
of a person of ordinary intdligence.** The ofiFense may
be predicated upon representations as to solvency, notwith-
standing the defendant had an honest intent to pay accord-
ing to the contract;" upon a false representation to a
woman to whom the defendant was engaged to be married
by which he obtained money from her,** and upon a false
statement as to title to property to a person who loans
money on the strength thereof." But property is not
obtained by false pretenses where the owner parts with the
property upon the strength of defendant's credit.*"

WHAT PROPERTY SUBJECT OF.

The obtaining of a promissory note is property within
the meaning of the statute on false pretenses,** and the
note is a faisc token.^*^ Ii also includes the giving of a

11 People V. Skidmore, 123 Cal. 267.

12 People V. Glbbs. 98 Cal. 661.

»3 People V. Morphy, 100 Cal. 84.
14 People V. Cummings, 123 Cal. 269.
IB People V. Wieger, 100 Cal. 352.
ifl People V. Weir, 120 Cal. 279.

17 People V. Hamberg, 84 Cal. 469.

18 People V. Mauritzen, 84 Cal. 37.

u^Peope V. Reed, 70 Cal. 529; People v. Cummlngs, 114 CaU

499; People v. Skidmore, 123 Cal. 267.
20 People V. Gibbs, 98 Cal. 661.



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FAL8E PRSTENSB. 155

check on a bank where the defendant had no funds or
credit, and the check is a false token;** but the proof of
obtaining a joint note when a note of one party is charged,
will not sustain a xxoiyiction.** i^ joes not include
defrauding of. real estate.*^

DISTINGUISHED FROM LARCENY.

In larceny the owner does not intend to part with title and
possession, while in false pretenses he does.^* But larceny
sometimes includes the obtaining of money by fraud where
the title remains in the owner ; but where the title as well as
the possession is parted with, the crime is that of obtaining
property by false pretenses.^*^ In false pretenses the title
passes from the party defrauded to the party making the
false representation.*** If the possession has been obtained
by fraud, trick, or device, and the owner of it intends to
part with his title when he gives up the p)Ossession, the
offense, if any, is obtaining money by false pretenses. But
where the possession has been obtained through a trick or
device, with the intent at the time the party receives it, to
convert the same to his own use, and the owner of the
property parts merely with the possession, and not with
the title, the offense is larceny.*^ The question of whether
the crime is larceny or obtaining money under false pre-
tenses, depends upon the question of fact whether the owner
of the money, at the time of parting with the possession of
it, intended to part with the title thereto. If he did not
intend to part with the title, but merely gave possession for
a special purpose, and in no event to be used by defendant
for his own purposes, the oifense of taking it, with intent
to steal, is larceny, and not obtaining money under false

21 People V. Donaldson, 70 Cal. 116; People v. Wasservogle,
77 Cal. 175.

22 People V. Cummlngs, 117 Cal. 497.

23 People V. Cummlngs, 114 Cal. 437..

24 People v. Martin, 102 Cal. 558; People v. Campbell, 127
Cal. 278; People v. Raschke, 73 Cal. 378; People y.
Johnson, 91 Cal. 265; People v. Tomlinson, 102 Cal. 19.

2ft People v. Rae, 66 Cal. 423.

26 People V. Johnson, 91 Cal. 265; People v. Shaughnessy,
110 Cal. 602; People v. Montarlal, 120 Cal. 695.

27 People V. Tomlinson, 102 Cal. 23; People v. Raschke,
73 Cal. 378; People v. Shaughnessy, 110 Cal. 602.



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156 CRIMINAL LAW AND PROCEDURE.

pretenses.^ And where the facts show larceny the defend-
ant may be convicted of that crime, although they also
would sustain a chargfe of obtaining money un4er false
pretenses.** But where the evidence shows only larceny,
the defendant cannot be convicted under an indictment for
obtaining money by false pretenses.***

EVIDENCE.

The prosecutor need not testify directly as lo the effect
of the representations upon him.'* The falsity of the rep-
resentation as to solvency may be proven by depositions
taken in the insolvency proceedings.'^ The rules of evi-
dence in civil cases as to direct or collateral attack on a
contract by parties to it, is not applicable on a prosecution
for false pretenses.*' The admissions of the defendant are
not sufficient to prove the corpus delicti,^* and a conviction
cannot be had on the uncorroborated testimony of the prose-
cutor.'** The delivery of the property and the vesting of
title are questions for the jury.'*

VERDICT.

The verdict, finding the defendant guilty as charged in
the information, is not defective by reason of not finding
the amount of money obtained by him from the fraud prac-
ticed; but the verdict, when taken in connectimi with the
information becomes as certain as to the amoimt of money
obtained as if the amount were expressly stated therein.*^

PENALTY.

It is punishable in the same manner, and to the same
extent, as for larceny of money or property so obtained.

M People V. De Graaff, 127 Cal. 676.

2» People v. Campbell, 127 Cal. 278; People v. Frigerio, 107

Cal. 152.
80 People V. Lewis, 127 Cal. 207.
SI People V. Hong Quin Moon, 92 Cal. 41.
»a People V. Wieger, 100 Cal. 352.
S8 People V. Martin, 102 Cal. 558.
M People V. Simonsen, 107 Cal. 345.
3s People V. Oibbs, 98 Cal. 661.
36 People V. Donaldson, 70 Cal. 116.
»T People V. Millan, 106 Cal. 320.



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FALSE PRETENSE. 167

INDICTMENT.

When a description of the property forms a part of
the false pretenses, it must be set out exactly as it was
made by the defendant.'* The falsity of the representa-
tions cannot be alleged by way of a negative pregnant."
The facts constituting the false pretenses must be alleged
with particularity ; fraud is a question of law to be deduced
from the facts alleged.**^

FORM — OBTAINING MONEY BY FALSE PRETENSES.

With intent to defraud one, C D, of his property, unlaw-
fully, knowingly, and designedly, falsely, and feloniously
did represent and pretend to the said C D, that two certain
bars and pieces of metal which he, the said A B, then and
there had and produced to the said C D were both pure
gold, and were of the value of one thousand dollars each
and of the aggregate value of two thousand dollars, and
the said C D then and there believing said false pretenses
and representations, and being deceived thereby, was
induced by reason of such false pretenses and representa-
tions» so made as aforesaid, by the said A B to loan and
(ielivcr and did then and there deliver to said A B, on
pledge and security of the said two bars and pieces of
metal, the sum of eight hundred and thirty-one dollars in
lawful money of the United States, which said money was
so secured and obtained by the said A B, unlawfully, know-
ingly, and designedly to defraud said C D, and which said
bars and pieces of metal at the said time and place, when
and where the same were pledged as aforesaid, were not
gold, and had not any value beyond the value of so much
brass, to wit, had not any value in excess of the sum of
five dollars in lawful money of the United States, ab the
said A B, then and there well knew.''^

FALSE SWEARING, see PERJURY.
FEMALE, see ABDUCTION AND SEDUCTION.

38 People V. Nesbit, 102 Cal. 827.

»» P^ple T. Grifflths, 122 Cal. 212.

« People V. McKenna, 81 Cal. 158; People v. Neil. 91 Cal.

466; Pfeople v. Faust, 113 Cal. 175.
41 People T. Millan, 106 Cal. 320; People v. Jordan, 66 Cal.

10; People v. Donaldson, 70 Cal. 116.



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CHAPTER XXVI.



FORGERY.

[Penal Code, sees. 470-482.1



DEFINED.

Forgery is the false making, altering, forging, counter-
feiting, uttering, or attempting to pass, with intent to
defraud, any of the instruments mentioned in the statute.^
The code differs from the common law as to the enumera-
tion of what instruments are the subjects of forgery, but
does not differ from the common law as to what consti-
tutes forgery of instruments which are the subject of for-
gery. At common law there were frecjuently embarrass-
ing questions as to what kinds of writings were the sub-
ject of forgery, while the code, to avoid these questions,
enumerates a very large number of writings which are sub-
jects of forgery. It is a felony, no matter how small the
amount involved ; and it differs from false pretenses in this,
that in forgery there must be a false making or counterfeit-
ing of the instrument, while in false pretenses there is false
assumption of authority and the obtaining of ptnpirty
thereby.^

INSTRUMENTS CAPABLE OF FORGERY.

It must be an instrument, which, if genuine, could
injure or defraud another person,^ and it must be of a
writing which falsely purports to be the writing of another.*
But icr^ery may be committed by the signing of one's

1 Penal Code 470. |

2 People V. Bendit, 111 Cal. 274.

8 People V. Terrill, 127 Cal. 99; People v. Blbby, 91 Cal.
470; Ex parte Finley, 66 Cal. 263; People v. Munroe, 100
Cal. 666; People v. Tomllnson, 35 Cal. 603.

* People V. Cole, 130 Cal. 13; People v. Tomllnson, 85 Cal.
506: People v. Bendit, 111 Cal. 277.



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FORGERY. 159

own name, where the name is identical with that of another
person, and was signed with a fraudulent intent to defraud
another person." And where the forgery is alleged to be
for recording a false instrument, it is criminal only when
such an instrument is entitled to be recorded.* As was
said in the previous section, the instruments which are the
subjects of forgery are defined by the statute, and it will
be unnecessary to enumerate them, but forgery may be
predicated upon instruments which are void on the gfround
that they are against public policy, or ultra vires,^ upon a
certificate of recordation,® upon an alteration of a check
already made, with intent to defraud,' an assignment of
an unearned salary of a teacher,**^ a requisition for a school
warrant," a certified copy of a decree of a court,^^ or upon
an endorsement on an unstamped draft.^* But it cannot
be predicated upon a letter to a collector of customs under
the Federal government," nor for the making or passing
of a check signed by a fictitious person.^' Forgery of a
mortgage may be committed, even though such instrument
to be valid should be executed by the wife also; and the
placing on record is a sufficient uttering and deliverv of
a mortgage.^*

INVALID INSTRUMENTS.

A writing which is nudum pactum is not the subject of
forgery ; but the test of the forgery of a contract is whether,
upon its face, it may have the eflfect to defraud those who
may act upon it as genuine, although it may not possess

5 People V. Rushing, 130 Cal. 449.

« People V. Harrold, 84 Cal. 867; People v. O'Brien, 96

Cal. 179.
T People V. Munroe, 100 Cal. 664; People v. James, 110

Cal. 158; People v. Wong Sam, 117 Cal. 30.
» People V. Turner. 113 Cal. 278.
» People V. Brotherton, 47 Cal. 388.
10 People V. Munroe, 100 Cal. 664.
n People V. Bibby, 91 Cal. 470.
12 Ex parte Finley, 66 Cal. 262.

i« People V. Frank, 28 Cal. 507; People v. Tomlinson, 35
Cal. 507.

14 People V. Wong Sam, 117 Cal. 29.

15 People V. Elliott, 90 Cal. 586; People v. Eppinger, 105
Cal. 38; People v. Laird, 118 Cal. 293.

i« People V. Baker, 100 Cal. 188.



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160 CRIMUIAL LAW AMD PROCEDURE.

the legal requisites of a negotiable paper and although the
party, in whose name it purports to be made, had no legal
capacity to make it, and the person to whom it was directed
was not bound to act upon it, even if genuine.^^ Where an
instrument is null upon its face, it is not a subject of forg-
ery, however, without some allegation aliunde that it can
be made to defraud.^®

INTENT TO DEFRAUD.

Intent to defraud is an essential element, and must be
specifically proved." But it is sufficient if uttered with
intent to defraud, and need not appear that the making
was also with such intent.^^ For each of the acts enum-
erated in the statute, that is, the uttering and passing, as
well as the making, is forgery.*^ And the accused may
be indicted, tried, and convicted of all as one crime, or
of any one of the series of acts mentioned in the statute,^*
for the making^ and uttering are but one offense^* Actual
injury is not essential to constitute the offense.^* It is not
necessary to a conviction under an indictment for forging
an order for the delivery of goods, that the order should be
signed in the name of a party having goods in possession
of drawee.^*^

FALSE SIGNATURE.

There must be shown to be a signing of another's name
without authority. Absence of authority to sign must be
shown in order to convict.-® So the signature of another
by the accused as his agent is not forgery. ^^ Neither does
forgery include the signing of a fictitious name.^® But

17 People V. James, 110 Cal. 155.

18 People V. Tomlinson, 35 Cal. 503; People ▼. Todd, 77
Cal. 466.

i'> i 0' p'e V. Mitchell, 92 Cal. 590.

20 e:x parte Finley, 66 Cal. 262; People v. Todd, 77 Cal. 466.

21 People V. Ah Woo, 28 Cal. 206.

22 People V. Shotwell, 27 Cal. 394; People ▼. Frank. 28
Cal. 513.

23 People V. Leyshon, 108 Cal. 440.

24 People V. Turner, 113 Cal. 278.

25 People V. Way, 10 Cal. 336.

20 People V. Lrundin, 117 Cal. 124; People v. M3tchell, 92

Cal. 590.
27 People V. Bendit, 111 Cal. 274.
-'« People V. Ellict:, TO Cal. 586.



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POBGBBY. 161

where two persons existed who bore the same name as that 4
signed to the check, neither of whom signed nor author-
ized the signature, it cannot be claimed that the check was
fictitious.*® Neither does the misspelling of the name
forged render it less a forgery. The doctrine of idem
sonans applies.'®

KNOWLEDGE.

In order to convict a person uttering a forged instru-
ment of forgery, it is essential that he have knowledge that
it was false and forged.'*

FICTITIOUS INSTRUMENTS.

Forgery and the making of fictitious checks are distinct
oflFenses ; and though, by the criminal law of England, the
making of a fictitious check would be punishable as forgery,
a distinctly different punishment is designated under the
code. And a conviction of for|;^e|^' ^^not be sustained
upon evidence of making a fictitious dieipfc^"*

EVIDENCE.

Evidence of subsequent transaction between the defend-
ant and the person defrauded, after the delivery of- the
note, is admissible if it tends to show fraudulent intent.'*
But testimony, explaining the paper introduced in evidence
which tends to connect defendant with a previous attempt
to commit a similar offense, is not admissible.'* But for
the purpose of proving knowledge, it may be shown that
the defendant murdered the man whose name was forged
to the instrument."^ A recent possession of the forged
instrument may be shown as against one claiming under
it,'* and, under an indictment for forging a mortgage the
note set out in the mortgage may be proved to be forged
also.*' The sheriff's return of a subpoena is not prima facie

2» People V. Laird, 118 Cal. 291.

80 People V. Alden, 113 Cal. 264.

81 People V. Mitchell, 92 Cal. 590.



Online LibraryCalifornia Charles Howard FairallCriminal law and procedure of California including the penal code of California → online text (page 13 of 77)