Denied December 15, 1914.
On Petition for Rehearing.
(144 Pac. 681.)
For appellant there was a brief with oral arguments by Mr. Guy C. H. Corliss, Mr. John P. Winter and Mr. M. J. Barrett.
For the State there was a brief over the names of Mr. Walter H. Evans, District Attorney, Mr. John A. Collier, Deputy District Attorney, and Mr. Robert F. Maguire, Deputy District Attorney, with an oral argument by Mr. Maguire.
Department 1. . Mr. Justice Ramsey delivered the opinion of the court.
The defendant was indicted for the crime of obtaining and attempting to obtain, by false pretenses, with *476intent to defraud, the signatures of two persons to a deed, the false making of which is and would be forgery. The indictment is based on Section 1964, L. O. L., which is as follows: .
“If any person shall, by any false pretenses or by any privy or false token, and with intent to defraud, obtain, or attempt to obtain from any other person, any money or property whatever, or shall obtain or attempt to obtain with the like intent, the signature of any person to any writing the false making whereof would be punishable as forgery, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one nor more than five years. ’ ’
The defendant was convicted of the crime for which he was indicted as stated supra, and this conviction was affirmed by this court on October 13, 1914. The instrument to which he obtained the two signatures was a deed of conveyance of land, and the signatures so obtained were those of M. J. Denny and his wife. He now asks for a rehearing mainly on two grounds. He contends: First, that he could not be guilty of the crime charged, unless the said deed was delivered; and, secondly, that the evidence of delivery of said deed was insufficient to warrant the jury in finding that there was a delivery thereof.
11. We will consider, first, the contention that the delivery of the deed to which he obtained the signatures is necessary to constitute the crime charged. The crime of which the defendant was convicted is closely related to forgery. The writing to which the signature is obtained must be one ‘ ‘ the false making of (which would be punishable as forgery.” A deed of conveyance is such a writing. If an instrument that is forged is void on its face, its fabrication is not a *477crime. It is sufficient, however, if, on its face, it is apparently legal.
In Volume 2 of his work on Criminal Law (11 ed.), Section 885, Dr. Wharton says:
“To sustain an indictment for forgery it is generally necessary that the instrument alleged to be forged should be one which would expose a particular person to legal process. Apparent legal efficiency, however, is enough. It is not necessary that such suit should have in it the elements of ultimate legal success. It is enough if the forged instrument be apparently sufficient to support a legal claim, ’ ’ etc.
12. In this case the deed was in due form, signed and sealed by the grantors, attested by two witnesses, and properly acknowledged before a notary public and certified. On its face it was a complete and valid deed of conveyance. If the defendant had forged the names of the grantors to said deed with fraudulent intent, he would have been guilty of the crime of forgery, because the deed was, upon its face, a complete and valid instrument. Uttering a fabricated instrument is not necessary to constitute the crime of forgery.
In Section 858, Volume 2 (11 ed.), Wharton’s Criminal Law, the author says:
“Forgery is making a false suable document with intent to defraud. The offense is consummated by the making of a false document, on which suit might be. brought, with intent to defraud, without any uttering. ”
In 13 Am. & Eng. Ency. Law (2 ed.), page 1085, it is said:
“As the offense (forgery) consists in the mere intention, it is not necessary that anyone should have been actually injured or defrauded by the forged writing. It is enough that it may probably or possibly *478be done. No uttering is necessary to constitute tbe offense. ’ ’
In 2 Bussell, Crimes (9 ed.), page 709, the author says:
“In the first place, however, it should be observed that the offense of forgery may be complete, though there be no publication or uttering of the forged instrument. For the very making with a fraudulent intention, and without lawful authority, of any instrument which, at common law or by statute, is the subject of forgery is of itself a sufficient completion of the offense before publication; and though the publication of the instrument be the medium by which the intent is usually made manifest, yet it may be proved as plainly by other evidence. Thus in a case where the note which the prisoner was charged with having forged was never published, but was found in his possession at the time he was apprehended, no objection was taken to the conviction, on the ground of the note never having been published; there being in the case circumstances sufficient to warrant the jury in finding a fraudulent intention. ’ ’
In State v. Fisher, 65 Mo. 437, 438, the defendant was indicted for forging a deed of conveyance, and, on appeal, the court quoted the forging passage from Bussell on Crimes, and said, inter alia:
“It is the felonious making of the false instrument as true in fact which constitutes the crime of forgery; consequently it was not necessary for the indictment to aver that the instrument would have conveyed the land if genuine. ‘The question is whether, upon its face, it will have the effect to defraud those who may act upon it as genuine, or the person whose name is forged.’ ”
In Keeler v. State, 15 Tex. App. 111, the syllabus is in part:
*479“In order to constitute forgery, and to sustain a conviction therefor, it is not necessary that the forged instrument shall have been passed in fact, and goods or’ money obtained upon the same.”
In Commonwealth v. Ladd, 15 Mass. 526, 527, the court says:
“The objection to the indictment is that it contains no averment that the paper alleged to be forged was presented or delivered to anyone, as a true or genuine acquittance or discharge for goods delivered in consideration thereof. This is not necessary at the common law, or under our statute. The false making, with intent to defraud, is the gist of the offense.”
In King v. Crocker, 2 Leach’s Crown Cases, 987, a part of the syllabus is:
“A person may be convicted of forging with intent to defraud, although the note was found in his custody when apprehended, and never in fact uttered by him. ’ ’
13. We conclude that, when a person is charged with the crime of forging a deed of conveyance, ilis not necessary to prove that the deed was delivered. As stated by Mr. Russell, supra:
“The very making with a fraudulent intention, and without lawful authority of any instrument which, at common law or by statute, is the subject of forgery is of itself a sufficient completion of the offense before publication. ’ ’
14, 15. The defendant is charged with the crime of obtaining the signatures of M. J. Denny and his wife to a deed of conveyance, by false pretenses, with the intent to defraud, etc.
Section 1964, L. O. L., makes it a crime for a person, by false pretenses, and with intent to defraud, to obtain the signature of a person to any writing the false making of which is punishable as forgery. We have *480seen supra that the false making of a deed of conveyance that appears on its face to be complete and valid is punishable as forgery, if made with fraudulent intent, although it may not have been delivered or used in any way. This being so, it necessarily follows that to obtain the signature to a deed of conveyance, by false pretenses, and with the intent to defraud, constitutes the crime of which the defendant was convicted, although said deed of conveyance may not have been delivered. The crime of forging a deed is complete when the instrument is fabricated with the intent to defraud, and delivery of the deed is not a necessary ingredient of that crime, as the uttering of a forged note or bill is no part of the crime of forging a note or bill. So the obtaining of signatures to a deed of conveyance by false pretenses, and with the intent to defraud, is consummated as soon as the signatures are so obtained, and a delivery of the deed is not a necessary element of said crime.
It is true that a deed of conveyance is not effective to convey title without delivery, express or implied. It is true, also, that a note or a bill is not effective as a binding contract until delivery. Yet it is the settled rule that delivery or the uttering of a note or a bill is not a necessary element in the crime of forgery, and that that crime is complete when the bill or the note is fabricated with the fraudulent intent, although it may not have passed from the possession of the forger. If, after a person has obtained the signature of another to a deed of conveyance, by false pretenses, and with an intent to defraud, something happens that prevents a delivery of the instrument, this does not purge the acts of the person who thus obtained such signature of their criminality. The crime was fully consummated when he thus obtained the signature.
*481"We conclude that the delivery of the deed was not a necessary element in the crime charged in the indictment. While under the terms of our statute delivery of the writing to which the signature of a person has been obtained by false pretenses and fraud is not essential to complete the crime, it may he shown as evidence of the fraudulent intent; but the intent may be shown by other facts. Statutes of other states may be so worded as to make delivery of the writing a necessary element of the crime.
The evidence shows that M. J. Denny and his wife executed the deed, and that it was properly witnessed, acknowledged and certified, and that they permitted the defendant and O. M. Smith to have inserted therein, as the grantees in said instrument, the names of the defendant and the Traders’ Trust Company. Mr. Smith was interested in said company, and he had it made a grantee instead of himself.
It appears on page 215 of the evidence that a juror said to O. M. Smith, when he was on the stand, the following: “I have lost track of what became .of the deed, when it was left at your office.” To this the witness Mr. Smith answered: “It was given over to Mr. Leonard. Mr. Leonard came to my office, or he was in my office when they left, and he took the deed.” Another juror asked this witness: “At whose request was the deed recorded?” The witness answered: “Well, the deed never was recorded. When they found out this trouble, I told Mr. Leonard to get the deed hack, and he telephoned to Oregon City and got it back before it was recorded.” This witness, speaking further-of this deed, says: “Well, I knew it (the deed) would be sent for record, of course; naturally supposed it would be.” On the back of this deed, which is the State’s Exhibit “D,” there is the following indorsement:
*482“Return when recorded to T. J. Leonard, 921 Board @f Trade Building, Portland, Oregon.”
Shortly after said deed was made, M. J. Denny and wife instituted a civil action or suit.against the defendant concerning the said transaction and the execu- ■ tion of said deed, and the defendant herein, in that action or suit, filed an answer which he signed and swore to. The following portion of said answer was put in evidence in this case:
“That said plaintiffs (Denny and wife) examined said notes and mortgages and expressed themselves as satisfied to make said exchange; that on or about the 2d day of December, 1912, the plaintiffs (Denny and wife) made, executed, and delivered to this defendant (Leonard) and to the Traders’ Trust Company, a corporation, a deed to said land (meaning the deed and the land referred to in the indictment); that said deed has never been recorded.”
It is not necessary to refer to any further evidence as to the delivery of said deed. We are limited to determining whether there was sufficient evidence to authorize the trial court to submit the case to the jury, or to sustain the finding of the jury. The evidence shows beyond doubt that, after the deed was properly executed, attested, acknowledged and certified, it was left by Denny and wife in the office of O. M. Smith; that Smith was associated with the defendant in purchasing the land of Denny; that the defendant took the deed and sent it to Oregon City to have it recorded; that trouble arose almost immediately about the transaction, and O. M. Smith told the defendant to get the deed back; and that the defendant telephoned to Oregon City and got it back. Shortly thereafter, in answering in the action or suit referred to supra, Leonard’s answer expressly alleged that said deed was made, executed and delivered by Denny and wife to *483him and the Traders’ Trust Company. Mr. Leonard signed said answer and swore to it. The facts stated supra tending to prove the delivery of said deed are strong.
16. The question of delivery is always a question of fact for the jury where there is any conflict in the evidence in relation thereto.
In 1 Devlin, Deeds (3 ed.), Section 262, the author says:
“A deed does not become operative until it is delivered with the intent that it shall become effective as a conveyance. Whether such intent actually existed is a question of fact to be determined by the circumstances of the case, and cannot in a majority of instances be declared as a matter of law.”
In Pierson v. Fisher, 48 Or. 223 (85 Pac. 621), the syllabus in part is:
“The possession of an executed deed by the grantee named therein creates a presumption of its regular delivery, and one asserting the contrary has the burden of proving such claim. Delivery of a deed is accomplished when the grantor voluntarily passes it to the grantee, or someone for him, or when the grantor does or says something that discloses unmistakably an intent to finally part with all control over the instrument.”
In Fain v. Smith, 14 Or. 82, 84 (12 Pac. 365, 367, 58 Am. Rep. 281), the court says:
“It is not necessary there should be an actual handing over of the instrument to constitute a delivery. A deed may be delivered by doing something and saying nothing, or by saying something and doing nothing, or it may be by both. ’ ’
In Flint v. Phipps, 16 Or. 437, 447 (19 Pac. 543, 549), the court says:
*484“Before proceeding further with an examination of the evidence on the question of delivery, it may be proper to advert to the legal presumption which arises in all cases where a deed properly executed and acknowledged is found in the possession of the grantee. In such case it will be presumed that such deed was delivered by the grantor and accepted by the grantee, in the absence of proof to the contrary.”
It was held in Pierson v. Fisher, 48 Or. 223 (85 Pac. 621), and Flint v. Phipps, 16 Or. 437, 447 (19 Pac. 543, 549), that the possession by the grantee of a deed of conveyance properly subscribed, witnessed, acknowledged and certified raises a disputable presumption that the deed has been duly delivered to the grantee. There is evidence referred to supra showing that the defendant had the possession of said deed, and that it was sent to Oregon City to be recorded, but that, owing to the fact that trouble had arisen concerning it, Smith,-the agent of the Traders’ Trust Company, told the defendant to get it back, and that the defendant telephoned to Oregon City, and had it returned. Why did the defendant have possession of it and send it to Oregon City to have it recorded, if it had not been delivered to him? Why did he say in his answer, signed and sworn to by him, as stated supra, that said deed was delivered to him and the Traders ’ Trust Company, unless it had been so delivered?
17. We find that there was sufficient evidence of the delivery of said deed and on the material points of the case to justify its submission to the jury and to support the verdict that the jury returned.
The petition for a rehearing is denied.
Affirmed. Behearing Denied.
Mr. Chief Justice McBride, Mr. Justice Moore and Mr. Justice Burnett concur.