People v. McDonald

• Decision Date: 01 July 1912
• Parties: PEOPLE v. McDONALD.
• Court: Colorado Supreme Court

125 P. 114

53 Colo. 265

PEOPLE v. McDONALD.

Supreme Court of Colorado

July 1, 1912

Error to District Court, City and County of Denver; George W Allen, Judge.

William McDonald was acquitted of forgery, and the People bring error. Reversed.

Willis V. Elliott, Dist. Atty., John Horne Chiles Chief Deputy Dist. Atty., and Dewey C. Bailey, Jr., Deputy Dist. Atty., for the People.

GARRIGUES J.

1. In this criminal case the defendant is charged in the first count of the information with attempting to pass an alleged forged bank check, and in the second count with having forged the instrument, which is as follows: 'Denver, Colo., Dec 8th, 1909. No. 816. The Central National Bank of Denver. Pay to the order of Richard Wells $20.95/100 twenty (20) 95/100 dollars. J. A. Osner.' December, 1909, defendant entered the saloon of Peterson, presented the check to his bartender and wanted to get it cashed. The matter was referred to Peterson, who, after some conversation with the defendant, told him the signature was not genuine, and turned him over to an officer without giving him any money and without the check being indorsed.

After identifying the check and showing the circumstances under which the defendant tried to each it, the people offered it in evidence. Defendant objected on the ground that it had no legal efficacy, and was not the subject of forgery because it was not indorsed. The objection was sustained and the district attorney, after stating that he could make no case without the check in evidence, and the court, still refusing to admit it, rested. Whereupon the court, on defendant's motion, directed the jury to return a verdict of not guilty, and discharged him. The people bring the case here to review the action of the district court.

2. Our statute provides that every person who shall falsely make or forge any check for the payment of money with intent to prejudice, damage, or defraud any person, or who shall attempt to pass as true and genuine any such check, knowing it to be forged, with intent to prejudice, damage, or defraud any person, shall be deemed guilty of forgery. This statute embraces two definitions of forgery: First, the making of a false check with intent to prejudice, damage, or defraud another; and, second, attempting to pass it as true and genuine, knowing it to be false, with intent to prejudice, damage, or defraud another. It will be unnecessary in this opinion to repeat these definitions. For brevity we will speak of making the check, or attempting to pass it. Assuming that the check was not true and genuine, if the defendant made it with the above intent, he was guilty of forgery when he made it. If he attempted to pass it, he was guilty of forgery when he tried to do that. It was not necessary to constitute a completed crime that the check should be indorsed, cashed, or passed, or that any one should be actually prejudiced by it. The crime did not consist in realizing on the fraud, but in making the false check or attempting to pass it. 2 Bish. Crim. Law, § 538.

3. The district court held there was no forgery because the check was not indorsed, and refused to admit it in evidence. It was useless for the prosecution to proceed; no case could be made without the check in evidence. In this ruling the court was clearly in error. It was not necessary for the people to either allege or prove an indorsement of the check. Santolini v. State, 6 Wyo. 110, 42 P. 746, 71 Am.St.Rep. 906; Leslie v State, 10 Wyo. 10, 65 P. 849, 69 P. 2; 1 Bish. Crim. Law, § 572; 2 Bish. Crim. Law, §§ 535, 638. In the Santolini Case, it is said: 'It does...