I concur in the conclusion reached by SAMFORD, J., but wish to place my concurrence in such conclusion on the ground that the check set out in the indictment is of apparent legal efficacy. An instrument cannot be said to be incapable of effecting fraud because by extraneous evidence it can be shown to be of no validity. Such instruments are nevertheless the subject of forgery.
So far as the check shows on its face, it was signed by the drawers, Bob and Lila Casper, by each writing their names, and the fact that there was an X mark over the name of "Bob" and "Lila Casper," without more, does not indicate that it was signed by mark, and to so establish this fact required evidence aliunde. If it be conceded that the X mark, without more, shows that Bob and Lila Casper signed the instrument by making their mark, then the check shows on its face that such signing was attested by a witness who could write his name. But it is contended that such attesting witness was as a matter of fact the payee named in the check, and as such could not be an attesting witness. Conceding then further that as a matter of law the payee could not be an attesting witness to the signature to the instrument drawn in his favour, yet it does not appear from the face of the check that the attesting witness is one and the same person, and extraneous evidence would be necessary to establish this fact. In fact the payee is "W.B. Lessley," while the attesting witness is "W.B. Lessly." But it may be contended that this reasoning is good, so far as the demurrers are concerned, but that the evidence shows that the drawers did sign by mark, and that the attesting witness is the same person named as payee in the check, and that on this account the check was improperly admitted in evidence.
A sufficient answer to this is that, while the evidence on the trial may show these to be the facts, yet all of these things did not appear on the face of the instrument, and that at the time of the alleged forgery this check as executed was calculated to deceive and perpetrate a fraud, and if all the evidence showed an instrument calculated to consummate a fraud, even though the instrument whereby the attempt was made should be shown by extraneous facts to be of no legal import, still the instrument under these facts is the subject of forgery. This would be true if the name signed was fictitious, or that a person to whom an order is addressed had no money or goods of the purported drawer in his possession. 19 Cyc. 1382; People v. McGlade, 139 Cal. 66, 72 P. 600; People v. Baker, 100 Cal. 188,34 P. 649, 38 Am. St. Rep. 276; State v. Pierce,8 Iowa, 231; State v. Hilton, 35 Kan. 338, 11 P. 164; State v. Morton, 27 Vt. 310. 65 Am. Dec. 201; Bowles v. State, 37 Ohio St. 35; Lemasters v. State, 95 Ind. 367; Thompson v. State,49 Ala. 16; Williams v. State, 126 Ala. 50, 28 So. 632.
I am conceding, without deciding, that where a check is signed by mark, it is necessary that there should be an attesting witness who can write his name.