ON PETITION POR REHEARING.
Corn, Justice.Counsel for plaintiff in error urges with great persistence that the writing in this case is not a “letter of attorney or ■other power to receive money” under our statute. He presents only one authority where the instrument was similar in form to the one in this case. It is a Michigan decision, holding that a paper, authorizing the bearers to solicit subscriptions for the relief fund of a labor organization, was not a “letter of attorney” or “order for money,” under the Michigan statutes. (People v. Smith, 112 Mich., 192.) The difference between an authority to solicit subscriptions and an authority to collect and receive payment of money due for a specified service is so marked as to make the case practically valueless as an authority in this case. Moreover, the term employed in our statute is more comprehensive. An order for money, as explained in the Michigan decision, has a well understood meaning and usually contains a request or direction to a third party, who is indebted to the maker of the order, to pay such money to the person named. , A power is an authority, whether evidenced by letter of attorney or otherwise. The word is defined in Bouvier’s Law Dictionary as “technically, an authority by which one person enables another to do something for him and in Anderson’s Law Dictionary it is defined as “the authority which one person gives another to act for him.” Our statute enumerates as one of the subjects of forgery “any letter of attorney or other power to receive money,” *24the purpose evidently being that if the writing in question was not in strictness a letter of attorne)'-, yet if it was in substance and in fact a written authority to receive money, it should be deemed included within the penalties of the law. It is plain upon the face of the writing and without additional averments that this purports to be such an authority and is within the statute.
In support of his contention, that the information does not state an offence, counsel further presents an argument which, as we understand it, is as follows: The forged instrument must be the instrument of another, and the information must státe or show- that it is the instrument of another. That, in order to do this, the information must show whose instrument it is. • That our statute provides that it must appear that it is either the instrument of a person, or body politic or corporate, and hence it is necessary that the information should state or show that it was either the instrument of a person or a corporation in addition to the other requirements necessary to constitute forgery. That the information does not so state or show. This is the reasoning as we understand it, and we think it is based upon some misconception of the principle relied upon.
It is true that, by all the authorities, the instrument must purport to be the instrument of another. But nothing more is meant than that if it purports to be the instrument of the defendant himself, whatever other criminal liability may be incurred by its execution, his offence is not forgery. A person cannot forge his own name or his own deed or other instrument. If, for instance, one executes an instrument, signing his own name as agent for another, although with intent to defraud, and, although he has no authority as agent, yet his offence is not forgery. This arises from- the nature of the crime. True, it has been held that if there are two persons of the same name, one of them may, in some cases, commit forgery by signing his own name, as by endorsing a draft payable to a person of his name, though he knows that he is not the one intended. But this is not *25an exception to the rule, for it is a forgery of the name of the other person, though the names are identical, and the essence of the offence is that the writing purports to be the instrument of such other person.
But as the instrument under consideration is not signed with the name of the defendant and does not purport to-be made by himself, but by another, the principle can have no possible application in this case.
As to the proposition that our statute, Section 5128, requires that it must appear to be the instrument either of a person or corporation, it is sufficient to say that the-statute contains no such requirement. ' The language referred to occurs in defining the intent necessary to constitute the offence. The information alleges the uttering to have been with intent to defraud one Charles Swanson. This' allegation is sufficient and is sustained by the evidence. But, independent of any supposed statutory requirement upon the subject, the instrument upon its face clearly purports to be the act of the Rocky Mountain News, a newspaper published in Denver. And we think it is not material and need not be averred or proved whether the business concern known as the Rocky Mountain News is owned or conducted by an individual, a partnership, a corporation or an unincorporated company. It has been repeatedly held that where the writing purports to be the instrument of a company or corporation, it is not material whether such company or corporation has any .existence or not. (Com. v. Smith, 6 Sergt. & R., 568; State v. Hayden, 15 N. H., 359; People v. Peabody, 25 Wend., 473; People v. Stearns, 21 Wendell, 409; Com. v. Carey, 2 Pickering, 49; State v. Van Hart, 17 N. J. L., 327.) The forgery of a deed was held to be complete, though there never was any such person as the supposed grantor in existence. (Anne Lewis case, Fost., 116, 118.)
2. The court refused to instruct the jury at the request of the defendant, that “the defendant is not required to testify and the jury have no right to presume anything against him because he has failed to testify.” In the brief of counsel *26upon the original hearing of this case it was said that it is uniformly held by the courts of last resort, in States having similar statutory provisions, that it is error to refuse the instruction when requested by the defendant, unless covered by another instruction. And in support of this statement three cases only are cited: State v. Evans (Kans. Ap.), 58 Pac., 240; State v. Magers (Or.), Id., 892, and State v. Carnagy (Ia.), 76 N. W., 805. The Kansas statute provides that the failure of the defendant to testify “shall not raise any presumption of guilt, nor shall that circumstance be referred to by any attorney prosecuting in the case, nor shall the same be considered by the court or jury before whom the trial takes place.” As only the attorney for the prosecution, and not the court, is forbidden to refer to the matter, it is perhaps a reasonable construction of the statute that the court may properly inform the jury of the law that it raises no presumption of the defendant’s guilt and of their duty to give it no consideration whatever in making up their verdict. The language of our statute, however, and apparently its policy, is different, for it provides “nor shall any reference be made to, nor shall any comment be made upon, such neglect or refusal.” This language includes as well the court and the counsel for the defense as the attorney for the prosecution. The apparent purpose is that, in cases where the defendant does not desire to testify, the trial shall proceed, as nearly as practicable, as at common law, so far as the testimony of the defendant is concerned; that is, that he may rest upon his plea of not guilty, and the State must prove every element of the crime against him, or else he must be acquitted by force of the presumption of his innocence. And to accomplish this purpose the method selected by the Legislature was to forbid any reference to the matter whatever throughout the trial. In the Oregon case referred to nothing more is decided than that the failure of the court to instruct upon the subject was not error when the instruction had not been seasonably requested by the defendant, and the Oregon statute differs still more widely from ours. It. *27simply provides that his waiver of the right to testify shall not create any presumption against him, and it does not for-hid either court or counsel to refer to or comment upon such waiver. The Iowa statute forbids the attorney or attorneys for the State to refer to defendant’s failure to testify, but does not forbid such reference by the court or counsel for the defense. As these are the only cases referred to in discussing the question in the original brief, and as the statutes of those States are substantially different from ours, counsel’s statement that it is uniformly held in States having similar statutory provisions that it is error to refuse the instruction when requested, can scarcely be said to be supported by the authorities cited.
But in the brief supporting the application for a rehearing we are referred to cases from Iowa, Texas, Nebraska, Vermont, Washington, Illinois, Maine, Colorado, California, Indiana, Mississippi, Louisiana, New York, Oregon and Kansas as supporting the view that, under the provisions of our statute, the instruction should have been given. Of the States named, the statutes of Indiana, Louisiana and Washington, under which the decisions referred to were rendered, in terms require the court to instruct upon the subject. They are not authority under our statute which forbids any reference to it. In others of the States named, as Mississippi and Texas, there is nothing, in addition to the provision that it shall create no presumption against him, except that it shall not be referred to or commented upon by counsel. And in others, as New York and Vermont, there is simply the provision that his failure to testify shall not create any presumption, or be considered as evidence against him, and reference to or comment upon it is not forbidden. The decisions from these States, therefore, do not involve any construction of the provision of our statute prohibiting any reference to defendant’s failure to testify. But in several States there are provisions identical with, or very similar to, our own, and in some of them the statute has been construed. The language of the Nebraska statute is substantially the same *28as ours. In Metz v. State, 46 Neb., 552, the Supreme Court of that State decided that, the defendant not having requested the court to instruct that his neglect to take the witness stand created no presumption against him, the court’s omission to do so was not error. In the later case of Ferguson v. State, 52 Neb., 437, the same court decided that it was not error for the trial court to instruct the jury in regard to defendant’s failure to go upon the witness stand, though the instruction was not requested by him. It is apparent that the question presented here was not before the court in either of those cases. In Ohio, where the statute is substantially the same as our own, there has been, so far as we are informed, no decision of the question by the Supreme Court. But in Sullivan v. State, 9 Ohio C. C. Rep., 652, where the trial court had instructed the jury upon the subject, upon its own motion, it is said that it would appear to be against the letter of the law,^ but not against its spirit. That “it would seem not to be in contravention of the spirit of the statute if the Judge, who may have seen the effect produced upon the jury by the failure of the defendant to testify in a particular case, should instruct them as to what the law requires of them in such case.” In Missouri the statute provides that such failure to testify shall not “be referred to. by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.” The Supreme Court of that State say there was no error in refusing such an instruction, and that if the court had given it, it would have disobeyed the spirit, if not the letter, of the law. (State v. Robinson, 117 Mo., 663.) The case of Farrell v. People, 133 Ill., 244, is also relied upon by counsel. But in that case the codefendant of plaintiff in error had testified and the court had given an instruction, on behalf of the State, as to the weight to be given to his testimony by which the attention of the jury was directed”to the statute making defendants in criminal trials competent to testify in their own behalf. By this circumstance the instruction was made necessary for the protection of the defendant in his rights under the statute. In another .case the same *29court say:- “The statute has, in unmistakable terms, declared, in effect, the omission of the accused to testify shall not be used to his prejudice or taken as an evidence of his guilt, and in such case court- and counsel should studiously avoid all allusions to the subject.” (Baker v. The People, 105 Ill., 458.)
In Fitzgerald v. The People, 156 N. Y., 253, cited by plaintiff in error, the error was not in refusing to give an instruction upon the subject, but the instruction given was held to be erroneous and prejudicial to the defendant. In that State the statute does not forbid reference to the subject, but simply provides that his neglect to testify shall not create a presumption against him, yet in the case of Ruloff v. the People, 45 N. Y., 222, where the Judge, in the course of his charge, had alluded to the failure of the defendant to testify, the Court of Appeals held that it was error as authorizing an inference to the prejudice of the prisoner; but, as upon his attention being called to it, he had explained to the-jury that no inference was to be drawn against him from the fact of his not being sworn, the error was cured. And the court say that neither the prosecuting officer nor the Judge has the right to allude to the fact that a person has not availed himself of the statute.
But, not to prolong the discussion of authorities, the history of the legislation, permitting defendants to testify in their own behalf, shows that its wisdom was originally very much questioned, and the privilege was regarded as one of very doubtful benefit to the prisoner. In the case last mentioned the court say, “discreet counsel will hesitate before advising a client charged with high crimes to be a witness for himself, under all the disadvantages surrounding him.” And, in Vermont the Supreme Court say, “In the great body of cases no wise practitioner would, permit his client, whether he believed him guilty or innocent, to testify when upon trial on a criminal charge.” And they add, “His testimony is far more likely to injure him seriously than to help ftim a little.” (State v. Cameron, 40 Vt., 565.) In this view of the prob*30able operation and effect of the statute, it Was attempted by every available means, while giving him the privilege, at the same time to protect him from the apprehended dangers if he did not elect to avail himself of it. In this and other States the method adopted was to prohibit any reference to the matter from the beginning to the end of the trial, and to let the case be tried, as at common law, as if the defendant’s testimony, owing to his interest in the result, would be entirely valueless and not to be taken into account.
This being plainly the purpose of the language used, we 'think the statute should have a reasonable construction to carry this purpose into effect. If counsel for the State should comment upon defendant’s failure to testify, or if anything should occur in the course of the trial to make it appear that it was operating to create a prejudice against him, it would become the duty of the court to protect him in his legal rights, as far as ■ possible, by proper instructions. In the absence of any such circumstances we are unable to perceive how the court can err by complying with the letter of the law.
There is no claim in this case that anything had occurred during the trial to call for the action of the court beyond the mere failure itself of the defendant to testify. And, therefore, while it would not have been error, of which the defendant could complain, to give the instruction, it was not error to refuse it. The general instruction of the presumption of innocence was sufficient.
3. One of the witnesses forthe prosecution was permitted to state, over objection, that he had received a telegram from the Denver News, stating that the defendant was not authorized to act as their agent. The evidence should have been excluded. But the business manager of the paper was upon the witness stand and testified to the same fact. The error was not material or prejudicial to the defendant.
The other errors complained of were sufficiently considered in the former opinion of the court. Rehearing denied.
PottRr, C. J., and Knight, J., concur.