In this case the jury found the defendant guilty of the crime of forgery in the second deg-ree under the provisions of section 587, Pen. Code, pursuant to an information the material parts of which are as. follows:
“The said John Hayes, then and there 'being an officer of a corporation, to-wit, the president and a director of Citizens’ State Bank, a banking corporation of Ft. Pierre, county of' Stanley and state of South Dakota, organized and existing under and by virtue of the laws of the state of South Dakota, did within said county -and state willfully, knowingly, and feloniously sign and issue a certain evidence of debt, to-wit, a certain certificate of deposit, in words- -andi figures as follows, to-wit: ‘Certificate of Deposit. Ft. Pierre, S. D., August 5, 1912, No. 62. This certifies that E. R. Hayes has deposited- with Citizens’ State Bank, Ft. Pierre, S. D., $2,000.00 (two thousand dollars), payable in current funds to the order of herself on the return of this certificate properly indorsed, -interest after December 5, 1912, with interest at 6 per cent, if left 4 months; no interest after one year. Not subject to check. John Playes, Pt.’ — against and purporting" to- be evidence -of debt ag'ainst said Citizens’ 'State Bank, a -corporation, which said' certificate o-f -deposit was then and there false in -this, that the said E. R. Plajees, in truth and fact, did not, on said 5th -day -o-f August, 1912, deposit the sum of $2,000 with said Citizens’ State Bank, as -in- said evidence of debt recited an-d that the -only sum o-f money by s-aid E. R. Hhyes in said bank on said day deposited was -the sum- of $10, as said John Hayes then and there well knew, which said false evidence of debt was by the said John Hayes then and there signed, and issued with intent to defraud the s-aid -Citizens’ State Bank, a corporation and which -said evidence of debt was not theretofore or at all authorized by the board of directors or other managing body or -officers .of said Citizens’ State Bank.”
[1] .Section 587, Pen. Code, first appeared in this jurisdic*533tion as section 566 of the Penal Code adopted January 11, 1865. As then adopted it read as follows, the italics being ours:
“Sec. 566. Every officer, and every agent of any corporation, municipal, or otherwise, or of any joint-stock association formed or existing under or by virtue of the laws of this territory, or of any other state, government, or country, who within this territory willfully signs or procures to be signed with intent to issue, sell, or pledge, or to cause to be issued, sold or pledged, or who willfully issues, sells or pledges, or causes to be issued, sold or pledged any false or fraudulent bond or ■ other evidence of debt against such corporation or association or any instrument purporting to be a bond or other evidence of debt against such corporation or association, the signing, issuing, selling, or pledging of which has not been duly authorized by the board of directors or common council or other managing body or officers of such corporation having authority to issue the same, is guilty of forgery in the second degree.”
That section appeared in -the Revised Penal Code of 1877 as section 561. It was there the same except that the italicized word “dr” where it appears after the word “otherwise” was omitted, and the italicized word “or” where it appears after the word “association” was made to read “of.” The wording of the section in the 1877 Code was carried forward into the Compiled Laws of 1887 (section 6762) and in the Revised Penal Code of 1903. These changes were manifestly clerical errors, and we hold that section 566 of the Penal Code of 1864-65 is the law at the present time, with the substitution, of course, of the word “state” for “territory.”
Defendant filed a demurrer to the information upon the ground, among others, that the facts stated in the information did not constitute a public offense, which demurrer was overruled by the trial court, Hon. John F. Hughes, presiding. Thereafter the cause was tried,. Hon. Levi McGee, presiding. After the conviction the defendant filed a motion in arrest of judgment based upon the same grounds as the demurrer. The trial court granted the motion in arrest of judgment and discharged the defendant from custody. From this order the state appeals.
[2] It is the contention of respondent that section 587, Pen. Code, covers substantially only one offense; that the instrument *534must not only be false or fraudulent, 'but also unauthorized; that therefore ¡this staute can be held to 'apply only to bonds, warrants, and such other instruments as 'require the authorization of a board of directors before they can be lawfully issued; that the falsity of the instrument goes not to the truth of its contents or recitals, 'but to the question whether it was issued without authority ; that certificates of deposits are not such instruments as require the authorization of the board of directors of a bank before issuance; therefore that the absurd condition arises that, if said section does apply to this kind of transaction, it necessarily follows that a board of directors has authority to authorize a false or fraudulent evidence of debt. In other words, respondent contends, and he claims to- be supported therein by the language of the information that the words “the signing, issuing, selling or pledging of which has not been duly authorized by the board of directors,” etc., apply to and govern a “false or fraudulent bond or. other evidence of debt.”
We do not so construe section 587, Pen. Code. As we view it, this section covers at least two distinct offenses (x) The issuance, sale, or pledge of any false or fraudulent evidence of debt against a corporation or association; (2) the issuance, sale, or pledge of any instrument (not false nor fraudulent) purporting to be a bond or other evidence of debt against the corporation or association', the issuing, selling, or pledging of which has not been duly authorized by the board of directors. We hold that the second class of instruments do not relate to a “false or fraudulent bond or other evidence of debt,” and that so much of the information as refers to the lack of authorization by the board of directors may be considered as surplusage.
[3] It is further urged by respondent that because the instrument was the genuine act of respondent it was not a false instrument; that there i's a distinction between a false instrument and' one which contains false statements; and that the statute does not cover the latter case. There is a distinction between the false making of an instrument and the making of a false instrument, as has been determined by many of the adjudications of the courts, but .this statute under consideration differs from the statutes of .¡/many of the states in that it relates, not to' the false making or issuing of the instrument, but to- the making or issuing *535of a false or fraudulent instrument. If A, not an officer of the bank, had signed the name of John Hayes to the certificate of deposit, and A. had issued the- certificate, he would' have 'been guilty of forgery in the first degree under section 575, Pen. Code, for forging the signature of John Hayes, but he would not have 'been guilty under section 587, Pen. Code, for issuing the instrument, because this section applies only to officers or agents of the corporation or association.
It is clear to us that the willful issuing by a bank officer of a certificate of deposit in an amount in excess of the actual deposit renders the instrument a false evidence of debt within the. meaning’ of section 587, Revised P’en. -Code 1903. The trial court was right in overruling the demurrer to the information, and erred in granting the motion in arrest of judgment.
The order appealed from is vacated, and the trial court is directed to cause the defendant to be sentenced for the crime of which he was found guilty by the jury.