
    PEOPLE v. J. A. DOWD.
    No. 10,448;
    December 27, 1879.
    Criminal Trial.—Where a Verdict Against the Defendant is Found Contrary to the Evidence and the court’s instructions, the supreme court will reverse the judgment and remand the cause for a new trial.
    
    APPEAL from County Court, Santa Clara County.
    J. C. Black, George W. Wells and S. L. Terry for appellant ; Attorney General Hamilton for respondents.
    
      
       Cited and approved in People v. Elliott, 90 Cal. 588, 27 Pac. 433, where, on the trial of one charged with forging a check in a firm name, the court said it was necessary, if there was no such firm, and the check was a fictitious one, that the prosecution should have been had under section 476 of the Penal Code, whereas the conviction was under section 476, which, though broad in its scope, was not broad enough to cover the intendments of section 476.
    
   By the COURT.

The defendant was indicted under the provisions of section 476 of the Penal Code. The court instrueted the jury that they must acquit the defendant unless it was proven that T. A. Dowd, the name signed to the check in question, was a fictitious person. This proposition is not contested by the prosecution. The evidence failed to prove that fact, and the jury should, on that ground, have acquitted the defendant.

Judgment and order reversed and cause remanded for a new trial. Remittitur forthwith.

MeKinstry, J., dissented.  