I agree that there was no prejudice in the failure to dismiss the first count of the information before any evidence was taken, or at all, in view of the fact that the jury acquitted on the first count. But I place my conclusions on reasons other than those stated in the prevailing opinion. I think that if there was any evidence introduced in support of the first count which was not material to the second count, or if there were any instructions in regard to the first count not material to the second count, and either such evidence or such instructions might have influenced the jury in finding the defendant guilty on the second count, the case should be reversed. But in this case I do not find that any evidence introduced in support of the first count was not material in support of the second count.
Certainly, the evidence that C. Gorham, the defendant, was the payee on the check was material to either count. The evidence that Samuel E. Bringhurst had not signed the check or authorized the signature was material on the second count because on the second count it was necessary to prove as one element that the check was a forgery. I shall later discuss the confusion between the names "Sam L. Bringhurt" and "Samuel E. Bringhurst." Evidence that Gorham passed the check and obtained money or goods for it certainly was as material to the second count as to the first. Perhaps more so, because in order to prove the first count only forgery with intent to pass would have to be proved. Usually the intent is proved by the actual act of passing, but not necessarily *Page 297 so. The evidence as to the conversation between defendant and the witnesses at the service station was as material to the second count as to the first, as will be shown hereinafter.
We now come to the only remaining evidence, and that is the evidence of Elias A. Smith, the expert, to the effect that the person who wrote the name "C. Gorham" on the back of the check was the same person who wrote the name "Sam L. Bringhurt" on the front of the check. This was very material to prove that Gorham himself signed the name "Bringhurt." But it was also material to prove his knowledge and the fact that the man whose name appeared on the check as maker, whether Bringhurst or Bringhurt, was not the man who signed the check. By such proof could be established an element in the second count, to wit, that C. Gorham, payee and indorser of the check, must have had knowledge that the check was a forgery. Knowledge that the check was a forgery when he uttered it could not be proved in any better way than by proof that he forged the check himself. Consequently, if the first count had never appeared in the information, then all the evidence introduced would have been introduced in support of the second count, and would have been material.
In the case of State v. Jenson, 74 Utah 527, 280 P. 1046,1049, two counts were stated; one for false pretenses, and the other for larceny by trick. The second count was withdrawn from the consideration of the jury after all the evidence was in. It was stated in that opinion as follows:
"It is quite certain in this case that every bit of evidence which would be required to establish the trick, artifice, or device necessary to prove and actually constituting the larceny could competently be introduced to support the false pretense. In fact it would seem that exactly the same evidence necessary to establish the larceny by artifice would be the evidence required to establish the false pretense for the simple reason that the artifice which constitutes the larceny in this case is the false pretense alleged in the first count." *Page 298
While the language above quoted was used in connection with the determination of the test as to whether, if two offenses had been improperly joined, there was prejudice, the language might as well have been used to show that there had been no prejudice by joining a count or an offense and withdrawing the same from the jury if all the evidence in support of the withdrawn charge or offense was material to support the remaining count or charge. In the instant case, the connection is very much closer, because the two counts contained in the information are simply different methods of committing forgery.
I cannot see that either instructions Nos. 3, 5, or 7, which pertain to the first count, could have in any way prejudiced the defendant as to the second count, because they all pertained to specific things which the court said the jury must find before they could convict the defendant under the first count. And the fact that the jury did not find him guilty of the first count would show that they could not have been influenced adversely by such instructions as to the first count. I find nothing in these instructions which could possibly carry over a hint or suggest to the jury that they could find the defendant guilty under the second count. When the court told the jury that they must find certain elements in order to convict under the first count, and they did not convict under that count, it must be presumed that they did not find those elements. Consequently, it cannot be presumed that they took into account those elements which they found to be wanting to convict under the first count in order to determine that the defendant was guilty under the second count. Such leads to an absurd conclusion. Therefore, I must agree with the prevailing opinion that the effect in this case of a finding of not guilty on the first count was exactly the same as a withdrawal from the jury of consideration of a count in the information after the evidence and before submission to the jury, or before evidence introduced, or in fact before the case was tried. *Page 299
As to the statement by the state's attorney, assigned as misconduct and as ground for a mistrial, I agree that it was not sufficiently serious for the declaring of a mistrial or for reversal. I agree that it was quite unnecessary and improper, but I do not quite see how the imputation could be carried to the jury that it was incumbent upon the defendant to explain his own theory at the risk of having the jury presume against him. It seems to me that counsel for the defendant gives too much effect to that remark of the prosecuting attorney. From the exchange of remarks by counsel in the courtroom, it appears to me that the remark of the district attorney was thoughtless, offhand, and not intended to and did not convey in any way the imputation which counsel contends it did.
In attacking the more difficult problems presented by this case, it appears to me that neither the prevailing opinion nor the dissenting opinion of Mr. Justice LARSON has given enough or any weight to an outstanding fact in this case, to wit, the fact that Gorham, the man accused of uttering the check, was also the payee on the check. It seems to me that this adds great significance as compared to the case where a more remote indorser is accused of uttering the check. It seems to me we can start out with the essential proposition that the jury could conclude that Gorham, who was the payee on the check, must have known either the identity of the person whose name purported to be on the check or the identity of the person who it was intended to represent had signed the check, or the fact that no such person who had presumptively signed the check existed. It is possible to conceive of a set of circumstances where a payee of a check might receive it not knowing the man who had signed it and not knowing any reason why such a man would make out a check to him, but common sense teaches us that most men do not have checks made out to themselves by men whom they do not know or with whom they have had no transaction. In other words, the fact that Gorham, the indorser of this check, was also the payee is some evidence *Page 300 from which the jury could infer that Gorham had knowledge as to whether the check was a good or a bad check, and up to that point we do not have to consider whether it is a forged or a fictitious check. Therefore, the statement is probably correct in the prevailing opinion that the evidence of Elias A. Smith, while material to prove knowledge of forgery on the part of Gorham, was not necessary because there was other evidence.
We now come to the question as to whether the jury could infer from the fact that Gorham was the payee that he knew that the name Sam L. Bringhurt was intended by the person who wrote it there to be "Samuel E. Bringhurst." Perhaps such inference could not be drawn, but there is other evidence to supply the element that Gorham not only knew who purported to sign the check or whether it was a fictitious person, but that he knew that the name "Sam L. Bringhurt," whoever placed it there, was intended to stand for and represent "Samuel E. Bringhurst." I think this evidence is supplied in the conversation between the defendant and Pearson, overheard by Knight and Brandley. It is quite true that the evidence is not specific as to the exact conversation, and it is difficult to know whether the witnesses are stating the substance of the conversation or making their own interpretations of what went on; but from all the evidence in that regard it seems quite clear that the defendant conveyed and intended to convey the impression that the signer of the check was Samuel E. Bringhurst. The fact that some one else may have assumed that and mentioned it, and this brought it to his attention, makes no difference if he, being the payee on the check and therefore presumed to know the person with whom he must have had the transaction out of which the check grew, used the vehicle of that assumption on the part of the person talking to him in order to represent that the name "Sam L. Bringhurt" stood for "Samuel E. Bringhurst." It is not a mere matter of acquiescence. We must keep in mind always that the jury could infer that Gorham, the payee, must have known who the person *Page 301 was whose name purported to be signed on the check, or that he was a fictitious person; this for the reason, as said before, that the evidence would make a prima facie case that the payee of the check, having the check in his possession, must have knowledge of who the person whose name appeared on the check was, or that he was a fictitious person.
Without more, however, it would be impossible to infer whether the payee knew that the person whose name appeared on the check was intended to be a fictitious person or whether it was a forgery of a real person's name. But Gorham supplies the evidence from which the jury may make the choice by his conversation overheard at the service station. Consequently, it seems to me that we have sufficient evidence that Gorham knew that the check was not the check of Samuel E. Bringhurst, together with sufficient evidence that he knew the check was intended to be considered and taken for the check of Samuel E. Bringhurst, and that he knew the name Sam L. Bringhurt was intended for the name of Samuel E. Bringhurst, and that Samuel E. Bringhurst had not signed or authorized it. Thus it seems to me we have sufficient evidence to make out a prima facie case of uttering a forged, rather than a fictitious instrument.
It seems to me that where the evidence shows that a person actually intended to forge the name of an existing person, but spelled it wrongly, it comes under the section regarding forgery. By the same token, where a person utters an instrument knowing the name thereon to have been intended to be the name of an existing person, he is guilty of forgery. As stated in the case of People v. Elliot, 90 Cal. 586, 27 P. 433, 434,
"The law appears to recognize a distinction between forged instruments purporting to have the signature of a person in existence, and those where the signature is purely and entirelyfictitious." (Italics added.)
Certainly, where there is evidence that the person accused expressed himself in such a way that he must be presumed *Page 302 to have known whether the purported signature of the maker of the instrument which he uttered purported to be the signature of a person in existence rather than of one who was purely and entirely fictitious, even under the above case of People v. Elliott, the case might have been held to have come under the forgery statute rather than the statute against the issuance and utterance of fictitious instruments. Especially should it be so held where, as stated in the Elliot Case, the forgery statute might be construed broad enough to include fictitious instruments were it not for the fact that there was a special statute on the making and uttering of fictitious instruments. I think it is quite important that we construe the laws wherever possible so that they are workable. If the changing of a letter or the wrong spelling of a name intended to be the name of an existing person should take it out of the forgery statute, then it seems to me by the same token a person accused of uttering a fictitious check might defend on the ground that he knew that the name which appeared as the maker of the instrument represented an existing person. It seems to me this would leave the law in a precarious state. The district attorney could not tell which way the defendant would jump until after it was too late, and he could escape in either case by simply making his evidence suit the crime which the district attorney had been unfortunate enough not to charge. I do not mean to say that it can be shown by evidence that any name signed to an instrument was supposed to represent an existing person. It is there that I think the doctrine of idem sonans applies. There must be such similarity in the names that a wrongly spelled name may be representative of the right name and that the names sound the same. I do not think that it could be shown that a person who put the name of Smith on a check intended to forge the name of Jones. Let us suppose that Gorham passed a check containing the name of "James A. Wolf" as maker and Gorham as payee. It certainly could be inferred from the presumptive transaction with the purported signer of the check that the payee had information as to the non-existence, *Page 303 existence, or identity of the purported maker. If he himself by declarations or their equivalent particularizes his knowledge to show that the person he represents as having given him the check was "James H. Wolfe," then we have no difficulty in knowing that he purports to have been dealing with James H. Wolfe and to have had a check from James H. Wolfe. And if we add to that, the evidence of James H. Wolfe that he did not sign or authorize the check to be signed, it seems to me we have a particular case that Gorham uttered a check to which he knew that the name James H. Wolfe was intended to be forged, and that, therefore, he is properly convictable under the forgery statute.
I must admit that instruction No. 8 should have read: "You are instructed that before you can find the defendant guilty under the second count alleged in the information, you must first find that Exhibit `A' is a forged instrument and that the name `Sam L. Bringhurt' was put there by the forgerer and intended to be the name of Samuel E. Bringhurst, and that it was not drawn, made or executed by or with the consent of said Samuel E. Bringhurst," etc. However, I do not think that the instruction was misleading to the jury. The jury was sufficiently apprised of the fact that the name had been wrongly spelled; sufficiently apprised by the evidence of the fact that it was intended to be the name of Samuel E. Bringhurst; and sufficiently apprised of the fact that Gorham knew it was intended to be the name of Bringhurst; and sufficiently apprised of the fact that Gorham knew that it was not Bringhurst's signature. The fact that the court itself made a slip in the instruction, I do not think was prejudicial.
The difference between the case of People v. Elliot, supra, in which the name of "A.E. Rice Co." was signed instead of the firm name of "Rice McKee," and the defendant was charged with having forged the name of Rice McKee, and this case, ought to be obvious on its face. Other cases *Page 304 wherein the courts have applied the doctrine of idem sonans are as follows:
"The following have been held to be idem sonans, Segrave for Seagrave; 2 Strange, 889; Whyneard for Winyard; Russ R. 412; Benedetto for Beneditto; 2 Taunt. 401; Keen for Keene; Thach. Cr. Cas. 67; Deadema for Diadema; State v. Patterson,24 N.C. 346, 38 Am. Dec. 699; Hutson for Hudson; Cato v. Hutson,7 Mo. 142; Coonrad for Conrad; Carpenter v. State, 8 Mo. 291; Gibney for Giboney; Fleming v. Giboney, 81 Tex. 422,17 S.W. 13; Allen for Allain; Guertin v. Mombleau, 144 Ill. 32,33 N.E. 49; Emerly for Emley; Galveston, H. S.A.R. Co. v.Daniels, 1 Tex. Civ. App. 695, 20 S.W. 955; Johnston for Johnson; Miltonvale State Bank v. Kuhnle, 50 Kan. 420,31 P. 1057, 34 Am. St. Rep. 129; Busse for Bosse; Ogden v. Bosse,86 Tex. 336, 24 S.W. 798; Chambles for Chambless; Ward v.State, 28 Ala. 53; Conly for Conolly; Fletcher v. Conly, 2 G. Greene (Iowa) 88; Usrey for Usury; Gresham v. Walker,10 Ala. 370; Faust for Foust; Faust v. U.S., 163 U.S. 452,16 S. Ct. 1112, 41 L. Ed. 224; Bubb for Bopp; Myer v. Fegaly,39 Pa. 429, 80 Am. Dec. 534; Heckman for Hackman; Appeal of Bergman,88 Pa. 120; Shaffer for Shafer; Rowe v. Palmer, 29 Kan. 337; Woolley for Wolley; Power v. Woolley, 21 Ark. 462; Penryn for Pennyrine; Elliott v. Knott, 14 Md. 121, 74 Am. Dec. 519; Barbra for Barbara; State v. Haist, 52 Kan. 35, 34 P. 453; Isreal B. for Israel B.; Boren v. State, 32 Tex.Crim. R.,25 S.W. 775; Alwin for Alvin; Jockisch v. Hardtke, 50 Ill. App. 202; Helmer for Hillmer; Cline v. State, 34 Tex. Crim. 415,31 S.W. 175; July for Julia; Dickson v. State,34 Tex. Crim. 1, 28 S.W. 815, 30 S.W. 807, 53 Am. St. Rep. 694; Elliott for Ellett; Robertson v. Winchester, 85 Tenn. 171,1 S.W. 781; Chegawgequay for Chegawgoquay; Brown v. Quinland,75 Mich. 289, 42 N.W. 940; Keoliher, Kelliher, Kellier, Keolhier, Kelhier, are held sufficient for Kealiher; Millett v. Blake,81 Me. 531, 18 A. 293, 10 Am. St. Rep. 275; Luckenbough for Luckenbach; Schee v. La Grange, 78 Iowa 101, 42 N.W. 616; Rooks for Rux; Rooks v. State, 83 Ala. 79, 3 So. 720; Tasso for Dasso; Napa State Hospital v. Dasso, 153 Cal. 698,96 P. 355, 18 L.R.A. (N.S.) 643, 15 Ann. Cas. 910; Wadkins for Watkins;Bennett v. State, 62 Ark. 516, 36 S.W. 947; Gittings for Giddans; Woody v. State, 113 Ga. 927, 39 S.E. 297." 1 Bouv. Law Dict. Rawle's Third Revision (1914) p. 1484."
I agree with the prevailing opinion in its holding regarding the admission of the deposition of Elias A. Smith.
For the reasons above stated, I concur. *Page 305