I agree with the holding that the second count of the information was framed under Section 103-24-1 and charged defendant with uttering a forged instrument. It is obvious from both the complaint and the information that the maker of this instrument and the drawee named therein were not fictitious. It is also apparent that the warrant contained the name of a fictitious payee and had endorsed on the back thereof a false and fictitious endorsement. I therefore agree that this charge could not have been laid under Section 103-24-7 which deals with fictitious instruments for that section does not purport to permit a charge to be based *Page 491 entirely on the fact that the instrument is payable to a fictitious payee or contains a false or fictitious endorsement. However, I cannot agree with the holding that the defendant did not have a preliminary hearing on the charge of uttering a counterfeited instrument upon the back of which was a false and fictitious endorsement.
The defendant was convicted under the second count of the information which is the count charging her with uttering this forged instrument. We need only determine whether or not she had a preliminary hearing on this count. This in turn depends upon whether or not the complaint, upon which she admittedly had a preliminary hearing encompassed the charge of uttering this forged instrument. If so, the defendant had a preliminary hearing.
The complaint is in two counts, but such is only for convenience. Executing a forged or fictitious endorsement and uttering an instrument knowing the same to contain such endorsement may be alleged in one count or in separate counts.State v. Jones, 81 Utah 503, 20 P.2d 614; State v. Green,89 Utah 437, 57 P.2d 750; State v. Gorham, 93 Utah 274,72 P.2d 656. The whole of the complaint must be taken together to see if the crime charged in the information is charged in the complaint. The first count of the complaint charged that the defendant forged a "false and fictitious endorsement to wit: the name of Robert Hansen on the back of a Sevier County Warrant." It then set the warrant out in full. As a second count thereto it charged that the "said Ardella Jensen at the time and place aforesaid did utter, pass, and publish the aforesaid warrant knowing the same to be fictitious," etc. (Italics added.) The charge that the defendant did utter, pass, and publish the "aforesaid warrant" must certainly be considered as if it had set out the warrant in full and described it as a warrant containing a fictitious endorsement, as it was set out and described in count one. The defendant must reasonably have been apprised in view of the allegation of a fictitious endorsement set out in the first count, that *Page 492 by the "aforesaid warrant" was meant the warrant with the fictitious or forged endorsement, and a fictitious signature or endorsement is one form of a forged signature or endorsement under Section 103-24-1. There is, therefore, a sufficient charge that she uttered a forged instrument.
The narrow point upon which this case must turn is whether or not the allegation that she uttered a forged instrument "knowing the same to be fictitious" is the equivalent of an allegation that she uttered a forged instrument "knowing the same to be forged." The main opinion holds that it is not sufficient and it is from this holding that I dissent.
It is true that Section 103-24-1, under which the defendant was convicted, provides that
"Every person who, * * * utters, publishes or passes, * * * any of the above-named false, altered, forged or counterfeited matters, as above specified and described, knowing the same tobe false, altered, forged or counterfeited * * * is guilty of forgery." (Italics added.)
In the place of the words "knowing the same to be false,altered, forged or counterfeited" the complaint merely uses the language "knowing the same to be fictitious." The word "fictitious" is defined by Webster's New International Dictionary, 2 Ed., to mean "Feigned; imaginary; pretended; not real; fabulous; counterfeit; not genuine." Thus, while the complaint did not use the exact wording of the statute, it did use a word synonymous with the word "counterfeit" which is used by the statute. If instead of referring to the warrant set out in the first count as the "aforesaid warrant," the second count of the complaint had re-alleged those matters set out in the first count, that is, set out the warrant and described it as a warrant containing a counterfeit or false endorsement, and then charged defendant with uttering or passing said warrant "knowing the same to be counterfeit or false," there can be little doubt but what it would have been sufficient. I think it hyper-technical to *Page 493 hold that because of the use of the word "fictitious" in the place of the words "false, altered, forged, or counterfeited" the defendant was not charged with an offense under Section 103-24-1.
This could not have misled the defendant or caused her to believe that she was being charged under Section 103-24-7. She knew that Sevier County was in existence and that the complaint did not purport to charge otherwise. It seems only common sense, to me, to conclude that she must have been apprised from the content of the two counts of the complaint that she was charged first with forging a false and fictitious endorsement, and secondly, with uttering said instrument knowing that such endorsement was forged or fictitious. It makes no difference whether it was the simulated signature of a real or existing Robert Hansen or of a non-existing or imaginary person with such invented name. It comes under Section 103-24-1 in either event. The test of whether she was reasonably apprised by the complaint of the crime with which she was charged, is not whether by some far fetched arguments a clever attorney could fancy that she might have been misled by the language thereof, but whether, in the light of the uncontroverted fact that she must have known that the Treasurer of Sevier County was an existing entity, she could have been misled. Under this test, only one conclusion can be reached, that is that she knew that the second count of the complaint charged her with uttering the instrument set out in the first count of the complaint, knowing that the endorsement of Robert Hansen contained thereon was false or fictitious. This is the very charge which the second count of the information directed against her. The fact that the court or the district attorney may have thought that the charge was laid under Section 103-24-7 instead of Section 103-24-1 does not alter the fact that defendant had a preliminary hearing as to the offense charged in the second count of the information. The court sentenced the defendant under Section 103-24-7. That was error. But that is curable by a resentence. *Page 494
The opinion appears to hold that the second count of the complaint did not charge the crime in any of the manners specified by Section 105-21-8, U.C.A. 1943, the provisions of which are made applicable to complaints by Section 105-11-1, U.C.A. 1943. Taking both counts of the complaint together it met the requirements set out in the prevailing opinion and those of Section 105-11-1. It charged that she uttered a warrant (setting it out) which contained on the back an endorsement known by her to be fictitious (forged or counterfeited). That is defined as forgery by Section 103-24-1.
The conviction shrould be affirmed but the case remanded for resentencing under Section 103-24-1.