EX PARTE J. K. FINLEY, ON HABEAS CORPUS, 66 Cal. 262

The Court. It is contended by petitioner that the information charges no crime, because it avers no intent to defraud in the making of the writing alleged to be forged. But if this omission be conceded, the instrument set out m the information is alleged to be a forged one, and the petitioner is charged with uttering it, knowing it to be forged, and with the intent to defraud George Wager. If the felonious intent was formed after the writing and seal were simulated, the offense of uttering it was complete if the intent existed when it was uttered.

The suggestion is that it is no offense to utter or pass a writing not forged, and that a writing is not to be treated as forged, in the technical sense, unless the information avers that it was made with intent „o defraud. We think, however, the statute (Penal Code, § 470) urovides for the case of one who shall utter (with intent to defraud) a writing—such as car be the subject of forgery—not genuine, but purporting to be genuine, even though there was no intent to defraud when the writing was fabricated.

It is further contended that a copy of a judgment certified by the clerk, and attested by the seal of the court, is not a forgable thing. The writing recited in the information purports to be in the hand of the clerk, and to have attached to it the seal of the court. The charge is of a forgery of the seal and handwriting of others, and the uttering is of a thing which may be forged.

It is said, moreover, that even if a certified copy of a decree of divorce, with court seal attached, is a thing capable of being forged, it is not a thing which can be assumed to have been forged or uttered with fraudulent intent, since no fraud can result from the passing or transfer of it, unless there exist, independent of the forged writing, a fact which must be alleged and proved, to wit, the fact that the persons declared by the decree to be divorced were ever married.

It is claimed the case is one of a class in which it is necessary to allege the fact which alone shows that a fraud could have been committed by the uttering of the alleged forged writing; that there is no inherent quality in a copy of a decree of divorce, which makes it a fraud to utter a forgery of it. In People v. Tomlinson, 35 Cal. 503, relied on by the petitioner, the contract set out in the indictment was void, no consideration being expressed and no mutuality appearing.

The court declared the rule to be well settled, that no case is made if the indictment merely sets out an instrument, a nullity on its face, without any averment that it can be made to act injuriously or fraudulently, by reason of matter aliunde.

The court said the cases cited established the doctrine “that, to constitute forgery, the forged instrument must be one which, if genuine, may injure another.” “The indictment must show that the instrument in question can be made available in law to work the intended fraud or injury.” (Id.) This language, read with the context, is not to the effect that there must be an averment of extrinsic facts, if the instrument recited shows on its face that it might be the means of fraud. The doctrine which meets our approval is laid down in Com. v.

Hinds, 101 Mass. 211: “ If the fraudulent character of the forged instrument is not manifest on its face, this deficiency should be supplied by such averments as to extrinsic matter as would enable the court judicially to see that it has such a tendency.” The rule does not require that the indictment or information shall contain an express allegation of the existence of every fact, the existence of which is assumed in the forged writing. It is enough if the writing is one which, if genuine, “ might apparently be of legal efficacy.” (2 Bish. Grim.

Law, § 572.) Where the writing is declarative of pecuniary liability, the act may be forgery, though the person purporting to become liable is a mere fictitious name. (Id. and cases cited.) In the case at bar, it is not necessary to hold that the recitals in a decree of divorce, set out in the information, are the equivalent of an express averment that the parties to the divorce were married. We hold that the marriage need not be averred. They may have been married, and on its face the writing shows that it may have been used to consummate a fraud. The petitioner is remanded.