People v. Mitchell

In my opinion, the information in this case is sufficient, but I concur in the judgment, upon the ground that the evidence is insufficient to sustain ,the verdict. The only evidence that *594 the check described in the information was a forgery, or that defendant knew its character when he transferred it, consisted of the testimony of one Gumpel, based upon a comparison of the check in question with certain writings proven to be in the handwriting of defendant. This witness'was asked whether, in his opinion, the face of the check and the writings referred to were in the same handwriting. In answer to which, “the witness testified that, in his opinion, the check and examples in evidence were all written by the same person.” This is not sufficient proof that the signature to the check was a forged one. Although as a matter of strict law it may be said that the face of a check includes the signature, it is not clear that the witness so understood it. Whether the signature to this check was genuine or false was a material fact in the case, and the attention of the witness should have been particularly directed to this. The record in this case leaves it in doubt whether the witness…

This is an appeal from a judgment and order denying defendant’s motion for a new trial. The charging part of the information is as follows: “ That the defendant did then and there unlawfully, feloniously, and fraudulently make and forge a certain check, an instrument in writing, in the words and figures following, to wit, .... and having indorsed thereon the words ‘ Fred J. Mitchell,’ did, .... willfully, unlawfully, falsely, fraudulently, knowingly, feloniously, and with intent to defraud, prejudice, and damage one M. J. McBride, utter, publish, and pass the said false and forged check and instrument in writing hereinbefore set forth, and said indorsement thereon, to said M. J. McBride as true and genuine.”

There are various matters relied upon by appellant as error, arising during the progress of the trial, but it will only be necessary to notice a few of the more important assignments.

The information is fatally defective, and the motion in arrest of judgment should have been granted. It will be observed that the charging part of the information consists, as it were, of two branches; that is, the defendant is charged with making and forging a certain check, and with uttering…