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promissory note or a check payable to one's own order cannot be the subject of forgery until the maker indorses it, since until then it is not capable of defrauding anyone.1

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§ 574. Apparent validity or efficacy. It is not necessary that the instrument shall have any real validity or legal efficacy. It is sufficient if it has such an apparent legal efficacy that it may deceive and defraud. And a conviction may be based upon an instrument which is apparently valid upon its face, although collateral or extrinsic facts exist which would render it void or of no effect if genuine, or though there is a legal defense to it apart from the

Colorado. People v. McDonald, 53 Colo. 265, 125 Pac. 114.

Georgia. Brazil v. State, 117 Ga. 32, 43 S. E. 460.

South Carolina. State v. Bullock, 54 S. C. 300, 32 S. E. 424.

Texas. Spicer v. State, 52 Tex. Cr. 177, 105 S. W. 813.

Wisconsin. Norton v. State, 129 Wis. 659, 109 N. W. 531, 116 Am. St. Rep. 979.

Wyoming. Santolini v. State, 6 Wyo. 110, 42 Pac. 746, 71 Am. St. Rep. 906.

1 People v. Thornburgh, 4 Cal. App. 38, 87 Pac. 234; Com. v. Dallinger, 118 Mass. 439.

2 California. People v. McGlade, 139 Cal. 66, 72 Pac. 600; People v. James, 110 Cal. 155, 42 Pac. 479; People v. Munroe, 100 Cal. 664, 35 Pac. 326, 24 L. R. A. 33, 38 Am. St. Rep. 323; People v. Bibby, 91 Cal. 470, 27 Pac. 781.

Georgia. Chambers v. State, 22 Ga. App. 748, 97 S. E. 256.

Indiana. State v. Hazzard, 168 Ind. 163, 80 N. E. 149.

Iowa. State v. Blodgett, 143 Iowa 578, 121 N. W. 685, 21 Ann. Cas. 231; State v. Van Auken, 98 Iowa 674, 68 N. W. 454; State v. Johnson, 26 Iowa 407; State v. Pierce, 8 Iowa 231. Louisiana. State v. Alexander, 113 La. 747, 37 So. 711.

Mississippi. Saucier v. State, 102

Miss. 647, 59 So. 858, Ann. Cas. 1915 A 1044.

Oregon. State v. Leonard, 73 Ore. 451, 144 Pac. 113, 681.

Texas. Dreeben v. State, 71 Tex. Cr. 341, 162 S. W. 501; King v. State, 42 Tex. Cr. 108, 57 S. W. 840, 96 Am. St. Rep. 792; Rollins v. State, 22 Tex. App. 548, 3 S. W. 759, 58 Am. Rep. 659.

Virginia. Gordon v. Com., 100 Va. 825, 41 S. E. 746, 57 L. R. A. 744. Wisconsin. State v. Coyle, 41 Wis.

267.

England. See Reg. v. Pike, 2 Moody C. C. 70, 3 Jur. 27.

And see the other cases cited in the following notes.

3 Neff v. United States, 165 Fed. 273; Brazil v. State, 117 Ga. 32, 43 S. E. 460; Chambers v. State, 22 Ga. App. 748, 97 S. E. 256; Dreeben v. State, 71 Tex. Cr. 341, 162 S. W. 501; Jones v. State, 60 Tex. Cr. 67, 130 S. W. 1012; King v. State, 42 Tex. Cr. 108, 57 S. W. 840, 96 Am. St. Rep. 792; Norton v. State, 129 Wis. 659, 109 N. W. 531, 116 Am. St. Rep. 979.

A deed reciting that the grantor is an Indian allottee is not void on its face, even though the right of allottees to convey may be subject to restrictions, and facts showing him to be capable of conveying free from restrictions are not alleged. Mc

forgery. So it is no defense to a prosecution for forging a municipal warrant that it is void because the city had exceeded the constitutional limit of its indebtedness when it was issued,5 or to a prosecution for forging a municipal certificate of indebtedness that the municipality had no power to issue such certificates, or for altering a public record so as to increase the amount allowed an officer for clerk hire, that the increased amount was greater than could legally be allowed for that purpose, or for forging an order for the delivery of intoxicating liquor to bearer that the persons forging and passing it were Indians and that it is a felony to furnish liquor to Indians, where the forged instrument is apparently valid on its face. And a contract may be the subject of forgery although it would not be enforceable if genuine because contrary to public policy, as, for example, a contract for the sale or assignment of the unearned salary of a public officer, or clearing house certificates or scrip used as money.10 It is also no defense that the person whose name is forged to an instrument has no legal capacity to make it,11 or is dead, 12 where that fact does not appear on

Donald v. State, 12 Okla. Cr. 144, 152
Pac. 610.

A prosecution may be based on the forgery of a guardian's bond valid on its face, although the statutory provisions with reference to citation, notice, etc., in the guardianship proceedings and the time of filing the bond were not complied with. Jones v. State, 60 Tex. Cr. 67, 130 S. W. 1012.

One may be convicted for forging the name of a married man to a mortgage of a homestead, though it would not have been good unless the mortgagor's wife joined in executing it. People v. Baker, 100 Cal. 188, 34 Pac. 649, 38 Am. St. Rep. 276.

4 Although laches would prima facie be a good defense to its enforcement. Flaugher v. Com., 1 Ky. L. Rep. 119.

5 State v. Brett, 16 Mont. 360, 40 Pac. 873.

6 State v. Eades, 68 Mo. 150, 30 Am. Rep. 780.

7 State v. Van Auken, 98 Iowa 674, 68 N. W. 454.

8 People v. James, 110 Cal. 155, 42 Pac. 479.

9 People v. Munroe, 100 Cal. 664, 35 Pac. 326, 24 L. R. A. 33, 38 Am. St. Rep. 323. And see People v. James, 110 Cal. 155, 42 Pac. 479.

10 People v. Collins, 9 Cal. App. 622,
99 Pac. 1109.

11 State v. Eades, 68 Mo. 150, 30
Am. Rep. 780; Brewer v. State, 32
Tex. Cr. 74, 22 S. W. 41, 40 Am. St.
Rep. 760.

That she is a married woman.
Dixon v. State, 81 Ala. 61, 1 So. 69;
People v. Krummer, 4 Park. Cr. (N.
Y.) 217; Miller v. State, 50 Tex. Cr.
536, 100 S. W. 380; King v. State,
42 Tex. Cr. 108, 57 S. W. 840, 96 Am.
St. Rep. 792.

The prefixing of "Mrs." to the name of a person purporting to have signed an order for goods does not carry with it the presumption that she was a married woman, or, being so, that her order was not legal or valid. State v. Alexander, 113 La. 747, 37 So. 711.

12 See § 559, supra.

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its face. And a conviction may be had for forging a deed purporting to grant land to which the grantor named has no title.18

§ 575. Similitude of instrument-In general. Where the forgery consists in the counterfeiting of a genuine instrument, there must be such a resemblance or similitude between the forged instrument and the genuine one as is necessarily or reasonably calculated to accomplish the intended fraud, that is, such a resemblance as is reasonably calculated to deceive or mislead.14 But it is sufficient if the resemblance is such that the instrument is calculated to or might deceive or defraud.15 It must be, and need only be such that it might have deceived or misled a reasonable person,16 or according to some courts, a person of ordinary observation.17 It need not be so close that the instrument might deceive persons of experience, or experts, 18 or that

13 People v. Van Alstine, 57 Mich. 69, 23 N. W. 594; Abston v. State, 134 Tenn. 604, 185 S. W. 706.

14 State v. Leonard, 171 Mo. 622, 71 S. W. 1017, 94 Am. St. Rep. 798.

Where it is alleged that a pass was forged and uttered with intent to defraud the railroad company purporting to have issued it, it must bear a similitude to a true and genuine pass, for otherwise it could not defraud the company. Goodman V. People, 228 Ill. 154, 81 N. E. 830.

Where a railroad ticket charged to have been altered or forged provided that it should be good for passage when officially dated, and the indictment alleged that the date stamp on the back of it was erased, but did not allege that another date was substituted for it, it was held that a conviction could not be sustained, since without a date the altered ticket did not bear a sufficient similitude to a genuine ticket to deceive or mislead any one. State v. Leonard, 171 Mo. 622, 71 S. W. 1017, 94 Am. St. Rep. 798.

15 Garmire v. State, 104 Ind. 444, 4 N. E. 54; Rohr v. State, 60 N. J. L. 576, 38 Atl. 673; State v. Cross, 101 N. C. 770, 7 S. E. 715, 9 Am. St. Rep.

53; State v. Covington, 94 N. C. 913, 55 Am. Rep. 650; or if there is a possibility of fraud. Com. v. Fenwick, 177 Ky. 685, 198 S. W. 32, L. R. A. 1918 B 1189; State v. Gryder, 44 La. Ann. 962, 11 So. 573, 32 Am. St. Rep. 358; State v. Dennett, 19 La. Ann. 395; State v. Gullette, 121 Mo. 447, 26 S. W. 354.

16 Goodman v. People, 228 Ill. 154, 81 N. E. 830; State v. Covington, 94 N. C. 913, 55 Am. Rep. 650.

Whether it would deceive such a person is generally a question for the jury. State v. Chance, 82 Kan. 388, 108 Pac. 789, 27 L. R. A. (N. S.) 1003, 20 Ann. Cas. 164; State v. Warren, 109 Mo. 430, 19 S. W. 191, 32 Am. St. Rep. 681.

17 State v. Gullette, 121 Mo. 447, 26 S. W. 354; Dement v. State, 2 Head (39 Tenn.) 505, 75 Am. Dec. 747.

18 Illinois. Ill. 154, 81 N. E. 830. Indiana. Garmire v. State, 104 Ind. 444, 4 N. E. 54.

Goodman v. People, 228

Kentucky. Barnes v. Com., 101 Ky. 556, 41 S. W. 772.

Ohio. Hess v. State, 5 Ohio 5, 22 Am. Dec. 767.

Massachusetts. Com. v. Stephen

it might deceive on close inspection,19 for it does not lie in the mouth of the forger to claim immunity because, if the person imposed upon had been vigilant, he would not have been deceived.20 It has been held to be forgery to materially alter an instrument though no attempt was made to conceal the erasure, and it was plain to anyone,21 and that a conviction may be based on a forgery or alteration so crude that it was detected at once by the person upon whom it was attempted to be passed.22 And it has been said that probably most courts would now hold that the offense may be committed by a device so crude that it could only impose upon the credulous or careless.23 If the forgery does not consist in the counterfeiting of a genuine instrument, the question of similitude is generally unimportant.24 How far the handwriting in and the signature to a forged instrument must resemble that of the purported signer will be considered in the following section.25

§ 576.

Handwriting and signature. There are some holdings to the effect that a conviction cannot be had for forging the name of a person really in existence, if the signature is so imperfect or inaccurate that a person of ordinary prudence would not be deceived by it.26 But according to the weight of authority, in the case of

son, 11 Cush. (Mass.) 481, 59 Am. Dec. 154.

It need not be such as to deceive the skilful, the experienced, or the wary. State v. Gullette, 121 Mo. 447, 26 S. W. 354.

19 Com., v. Fenwick, 177 Ky. 685, 198 S. W. 32, L. R. A. 1918 B 1189; Lawless v. State, 114 Wis. 189, 89 N. W. 891.

That nice observers might detect the alteration by holding the instrument up to the light. State v. Robinson, 16 N. J. L. 510.

20 Garmire v. State, 104 Ind. 444, 4 N. E. 54; Com., v. Fenwick, 177 Ky. 685, 198 S. W. 32, L. R. A. 1918 B 1189; State v. Gullette, 121 Mo. 447, 26 S. W. 354.

21 Rohr v. State, 60 N. J. L. 576, 38 Atl. 673.

22 Wilson v. State, 7 Ga. App. 583, 67 S. E. 705.

23 State v. Chance, 82 Kan. 388, 108 Pac. 789, 27 L. R. A. (N. S.) 1003, 20 Ann. Cas. 164.

24 So it is not necessary to a conviction for forging an order for goods that the instrument shall imitate or resemble such an order as the person purporting to have made it would have drawn. State v. Gullette, 121 Mo. 447, 26 S. W. 354.

25 See § 576, infra.

26 State v. Warren, 109 Mo. 430, 19 S. W. 191, 32 Am. St. Rep. 681; State v. Covington, 94 N. C. 913, 55 Am. Rep. 650.

Is sufficient if there is such a similitude to a genuine instrument as would deceive a person of ordinary understanding who did not know the handwriting of the person whose name was forged, and to whom it might be passed in the ordinary course of business. Com. v. Stephen

private signatures, there need be no resemblance or similitude to the writing or signature of the person whose instrument it purports to be, at least where the person attempted to be defrauded is not familiar with the genuine handwriting or signature.27 And in no case need the resemblance be so close as to deceive persons familiar with the genuine handwriting.28 But the fact that there is no attempt to imitate the genuine signature or that there is no resemblance to the genuine handwriting may be considered as showing the absence of an intent to defraud,29 except where such an intent is shown by the use of the instrument for that purpose.30

As a rule, the fact that the name is misspelled does not prevent the fraudulent signing of another's name from being a forgery 31

son, 11 Cush. (Mass.) 481, 59 Am. Dec. 154.

27 Com. v. Fenwick, 177 Ky. 685, 198 S. W. 32, L. R. A. 1918 B 1189; Barnes v. Com., 101 Ky. 556, 41 S. W. 772; State v. Cross, 101 N. C. 770, 7 S. E. 715, 9 Am. St. Rep. 53; State v. Poindexter, 23 W. Va. 805.

28 State v. Gryder, 44 La. Ann. 962, 11 So. 573, 32 Am. St. Rep. 358.

The signing of another's name to a check on a bank may be a forgery although it would not be likely to deceive the officers of the bank. Barnes v. Com., 101 Ky. 556, 41 S. W. 772; Com. v. Stephenson, 11 Cush. (Mass.) 481, 59 Am. Dec. 154.

29 State v. Cross, 101 N. C. 770, 7 S. E. 715, 9 Am. St. Rep. 53.

Where defendant contended that he had authority to sign another's name to a check, it was held that the fact that he made no attempt to imitate the latter's signature was to be considered on the question of his intention, but was not conclusive, and that it was nevertheless forgery if there was an intent to defraud any person. Schmidt v. State, 169 Wis. 575, 173 N. W. 638.

30 State v. Cross, 101 N. C. 770, 7 S. E. 715, 9 Am. St. Rep. 53.

31 United States. White V. Van

Horn, 159 U. S. 3, 40 L. Ed. 55, 15
Sup. Ct. 1027.

Alabama. Baysinger v. State, 77
Ala. 63, 54 Am. Rep. 46; Gooden v
State, 55 Ala. 178.

California. People v. Alden, 113 Cal. 264, 45 Pac. 327.

Georgia. Hale v. State, 120 Ga 183, 47 S. E. 531.

Illinois. Langdon v. People, 133 Ill. 382, 24 N. E. 874.

Kansas. State v. Chance, 82 Kan. 388, 108 Pac. 789, 27 L. R. A. (N. S.) 1003, 20 Ann. Cas. 164.

Louisiana. State v. Gryder, 44 La. Ann. 962, 11 So. 573, 32 Am. St. Rep. 358.

Montana. State v. Vineyard, 16 Mont. 138, 40 Pac. 173.

North Carolina. State v. Covington, 94 N. C. 913, 55 Am. Rep. 650. Tennessee. Peete v. State, 2 Lea

513.

Texas. Allen v. State, 44 Tex. Cr. 63, 68 S. W. 286, 100 Am. St. Rep. 839; Davis v. State, 34 Tex. Cr. 117, 29 S. W. 478.

Whether writing "Seramskey" for "would deceive a man "Scramshey'

of ordinary prudence who knew the person whose name was forged was held to be for the jury. State v.

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