Jones

The defendant was tried and found guilty of the crime of forgery as charged in the information. He moved for a new trial and in arrest of judgment, which motions were denied. Prom the judgment and from the order denying his motion for a new trial he prosecutes this appeal.

It appears from the record that the defendant, in company with one John Lewis, on December 3, 1908, called at the place of business of Smith Bros., a corporation, and the defendant, acting as spokesman, represented that they were a committee for the collection of funds for the benefit of Walter Miller, who, they said, was either ill or had been injured. Upon this representation a check was drawn in favor of Walter Miller on the First National Bank of Oakland for the sum of $5, signed “Smith Bros. Inc. J. Prank Smith, Secretary President.” Thereafter John Lewis, in the presence of the defendant, indorsed the name of Walter Miller on the back of the check and received from the Forum Cafe, a corporation, the sum of $5 in payment thereof.

One of the contentions of defendant is that it is not shown, either in the information or by proof, whether Walter Miller was a real or fictitious person.

The information is…