McCAMANT, J. —
1. Counsel for the respective parties have lavished a wealth of learning and research on the question of the validity of the contract marriage celebrated December 24, 1898, at Eagle City, Alaska. We shall assume without deciding that this marriage was valid. Can it be said on this assumption that appellant forged the deed set out in the indictment?
Section 1996, L. O. L., in so far as it is material here is as follows:
“If any person shall, with intent to injure or defraud any one, falsely make, alter, forge, or counterfeit any * * contract, * * deed, * * or shall, with such intent, knowingly utter or publish as true or genuine any such false, altered, forged, or counterfeited * * writing * * such person upon conviction thereof, shall be punished. * * ”
This statute has been construed by the court in State v. Wheeler, 20 Or. 192, 195 (25 Pac. 394, 23 Am. St. Rep. 119, 10 L. R. A. 779). It is there held that
“the essential elements of the crime are: (1) a false making of some instrument in writing; (2) a fraudu[124]*124lent intent; (3) an instrument apparently capable of effecting a fraud.”
Assuming that Caroline C. S. Ford was appellant’s wife May 12, 1914, when the deed was executed, the deed contained a false recital in that it described Elizabeth G. Ford as the wife of H. N. Ford. The deed did not purport to be the deed of Caroline C. S. Ford, or of anyone else than H. N. Ford and Elizabeth G. Ford, who signed it.
In his scholarly opinion in State v. Wheeler, 20 Or. 192 (25 Pac. 394, 23 Am. St. Rep. 119, 10 L. R. A. 779), Mr. Justice Bean says:
“The term ‘falsely’, as applied to making a promissory note in order to constitute forgery has reference not to the contract or tenor of the instrument, or the fact stated in the writing, because a note or writing containing a true statement may be forged or counterfeited as well as any other; but it implies that the writing is false, not genuine, fictitious, not a true writing, without regard to the truth or falsehood of the statement it contains. The note must in itself be false, not genuine, a counterfeit, and not the true instrument which it purports to be.”
We think that there can be no doubt of the correctness of the principles so announced. The genuineness of an instrument is not dependent on the truthfulness of its recitals. A deed may falsely recite the area of the land conveyed, but if it is executed by the true parties it is still a genuine as distinguished from a false, forged or counterfeited instrument.
A deed containing such false recital may form the basis for some other criminal charge, but if it is executed by the parties purporting to convey or encumber it is not a forgery.
[125]*125It is said by the Iowa court iu Loser v. Plainfield Savings Bank, 149 Iowa, 672 (128 N. W. 1101, 31 L. R. A. (N. S.) 1112, 1114, 1115):
“There is no such thing as a ‘legal name’ of an individual in the sense that he may not lawfully adopt or acquire another, and lawfully do business under the substituted appellation. In the absence of any restrictive statute, it is the common-law right of a person to change his name, or he may by general usage or habit acquire a name notwithstanding it differs from the one given him in infancy. A man’s name for all practical and legal purposes is the name by which he is known and called in the community where he lives and is best known.”
This principle is also taught by Smith v. United States Casualty Co., 197 N. Y. 420 (90 N. E. 947, 18 Ann. Cas. 701, 26 L. R. A. (N. S.) 1167); Laflin & Rand Co. v. Steytler, 146 Pa. St. 434 (23 Atl. 215, 14 L. R. A. 690, 695); Roberts v. Mosier, 35 Okl. 691 (132 Pac. 678, Ann. Cas. 1914D, 423); 19 R. C. L. 1332, 1333.
2, 3. It is not believed that Section 7093, L. O. L., abrogates the common-law principle announced by the foregoing authorities. This section of the Code empowers the County Court to hear and determine applications for the change of names. In 1852 Pennsylvania enacted a similar statute, found in the Session Laws for that year at page 301. It was held by the Supreme Court of Pennsylvania that the act “was in affirmance and aid of the common law, to make a definite point of time at which a change shall take effect,” and that notwithstanding the statute a party can acquire by custom the right to use a certain name: Laflin & Rand Co. v. Steytler, 146 Pa. St. 434 (23 Atl. 215, 14 L. R. A. 690, 695). In any event we must assume in the absence of evidence on the subject that the common-law rule obtains in Illinois and the other states in which [126]*126appellant and Elizabeth G. Frary had resided from 1908 to 1914. During all of that time the latter had been known as Elizabeth G. Ford. The deed in question therefore was executed by her under the name by which she was known. In State v. Wheeler, 20 Or. 192 (25 Pac. 394, 23 Am. St. Rep. 119, 10 L. R. A. 779), Mr. Justice Bean says:
“When a party signs a name not his own, but one which he has adopted, using it without the intent to deceive as to the identity of the person signing it, it is not a forgery.”
The state cites Commonwealth v. Foster, 114 Mass. 311, 320 (19 Am. Rep. 353), State v. Farrell, 82 Iowa, 553, 558 (48 N. W. 940), and Barfield v. State, 29 Ga. 127, 131 (74 Am. Dec. 49). In all these cases the parties signing the instruments used their true names, but the instruments were signed with intent to be used as the contracts of other parties whose names were identical. In each of these cases there was a false making. The instrument was signed by one party with intent that it be uttered as that of another. We find no evidence of such intent in the instant case. At the date of the deed appellant was insisting that Elizabeth G. Ford or Elizabeth G. Frary was his wife and that he had never married Caroline C. S. Ford. There is no evidence of intention to utter the instrument as the deed of Caroline C. S. Ford. The deed purported to be what it was in fact, the deed of H. N. Ford and Elizabeth G. Ford.
The case of State v. Wheeler, 20 Or. 192 (25 Pac. 394, 23 Am. St. Rep. 119, 10 L. R. A. 779), does not stand alone in holding that a false recital of fact does not constitute forgery. The false recital that Elizabeth G. Ford was the wife of II. N. Ford did not under the authorities constitute a false making of the instru[127]*127ment. In United States v. Wentworth, 11 Fed. 52, 55, it is said:
“To falsely make an affidavit is one thing; to make a false affidavit is another. A person may falsely make an affidavit, every sentence of which may he true in fact. Or he may actually make an affidavit, every sentence of which shall be false. It is the ‘false making’ which the statute makes an offense, and this is forgery as described in all the elementary books.”
In State v. Young, 46 N. H. 266 (88 Am. Dec. 212, 216), the court says:
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McCAMANT, J. —
1. Counsel for the respective parties have lavished a wealth of learning and research on the question of the validity of the contract marriage celebrated December 24, 1898, at Eagle City, Alaska. We shall assume without deciding that this marriage was valid. Can it be said on this assumption that appellant forged the deed set out in the indictment?
Section 1996, L. O. L., in so far as it is material here is as follows:
“If any person shall, with intent to injure or defraud any one, falsely make, alter, forge, or counterfeit any * * contract, * * deed, * * or shall, with such intent, knowingly utter or publish as true or genuine any such false, altered, forged, or counterfeited * * writing * * such person upon conviction thereof, shall be punished. * * ”
This statute has been construed by the court in State v. Wheeler, 20 Or. 192, 195 (25 Pac. 394, 23 Am. St. Rep. 119, 10 L. R. A. 779). It is there held that
“the essential elements of the crime are: (1) a false making of some instrument in writing; (2) a fraudu[124]*124lent intent; (3) an instrument apparently capable of effecting a fraud.”
Assuming that Caroline C. S. Ford was appellant’s wife May 12, 1914, when the deed was executed, the deed contained a false recital in that it described Elizabeth G. Ford as the wife of H. N. Ford. The deed did not purport to be the deed of Caroline C. S. Ford, or of anyone else than H. N. Ford and Elizabeth G. Ford, who signed it.
In his scholarly opinion in State v. Wheeler, 20 Or. 192 (25 Pac. 394, 23 Am. St. Rep. 119, 10 L. R. A. 779), Mr. Justice Bean says:
“The term ‘falsely’, as applied to making a promissory note in order to constitute forgery has reference not to the contract or tenor of the instrument, or the fact stated in the writing, because a note or writing containing a true statement may be forged or counterfeited as well as any other; but it implies that the writing is false, not genuine, fictitious, not a true writing, without regard to the truth or falsehood of the statement it contains. The note must in itself be false, not genuine, a counterfeit, and not the true instrument which it purports to be.”
We think that there can be no doubt of the correctness of the principles so announced. The genuineness of an instrument is not dependent on the truthfulness of its recitals. A deed may falsely recite the area of the land conveyed, but if it is executed by the true parties it is still a genuine as distinguished from a false, forged or counterfeited instrument.
A deed containing such false recital may form the basis for some other criminal charge, but if it is executed by the parties purporting to convey or encumber it is not a forgery.
[125]*125It is said by the Iowa court iu Loser v. Plainfield Savings Bank, 149 Iowa, 672 (128 N. W. 1101, 31 L. R. A. (N. S.) 1112, 1114, 1115):
“There is no such thing as a ‘legal name’ of an individual in the sense that he may not lawfully adopt or acquire another, and lawfully do business under the substituted appellation. In the absence of any restrictive statute, it is the common-law right of a person to change his name, or he may by general usage or habit acquire a name notwithstanding it differs from the one given him in infancy. A man’s name for all practical and legal purposes is the name by which he is known and called in the community where he lives and is best known.”
This principle is also taught by Smith v. United States Casualty Co., 197 N. Y. 420 (90 N. E. 947, 18 Ann. Cas. 701, 26 L. R. A. (N. S.) 1167); Laflin & Rand Co. v. Steytler, 146 Pa. St. 434 (23 Atl. 215, 14 L. R. A. 690, 695); Roberts v. Mosier, 35 Okl. 691 (132 Pac. 678, Ann. Cas. 1914D, 423); 19 R. C. L. 1332, 1333.
2, 3. It is not believed that Section 7093, L. O. L., abrogates the common-law principle announced by the foregoing authorities. This section of the Code empowers the County Court to hear and determine applications for the change of names. In 1852 Pennsylvania enacted a similar statute, found in the Session Laws for that year at page 301. It was held by the Supreme Court of Pennsylvania that the act “was in affirmance and aid of the common law, to make a definite point of time at which a change shall take effect,” and that notwithstanding the statute a party can acquire by custom the right to use a certain name: Laflin & Rand Co. v. Steytler, 146 Pa. St. 434 (23 Atl. 215, 14 L. R. A. 690, 695). In any event we must assume in the absence of evidence on the subject that the common-law rule obtains in Illinois and the other states in which [126]*126appellant and Elizabeth G. Frary had resided from 1908 to 1914. During all of that time the latter had been known as Elizabeth G. Ford. The deed in question therefore was executed by her under the name by which she was known. In State v. Wheeler, 20 Or. 192 (25 Pac. 394, 23 Am. St. Rep. 119, 10 L. R. A. 779), Mr. Justice Bean says:
“When a party signs a name not his own, but one which he has adopted, using it without the intent to deceive as to the identity of the person signing it, it is not a forgery.”
The state cites Commonwealth v. Foster, 114 Mass. 311, 320 (19 Am. Rep. 353), State v. Farrell, 82 Iowa, 553, 558 (48 N. W. 940), and Barfield v. State, 29 Ga. 127, 131 (74 Am. Dec. 49). In all these cases the parties signing the instruments used their true names, but the instruments were signed with intent to be used as the contracts of other parties whose names were identical. In each of these cases there was a false making. The instrument was signed by one party with intent that it be uttered as that of another. We find no evidence of such intent in the instant case. At the date of the deed appellant was insisting that Elizabeth G. Ford or Elizabeth G. Frary was his wife and that he had never married Caroline C. S. Ford. There is no evidence of intention to utter the instrument as the deed of Caroline C. S. Ford. The deed purported to be what it was in fact, the deed of H. N. Ford and Elizabeth G. Ford.
The case of State v. Wheeler, 20 Or. 192 (25 Pac. 394, 23 Am. St. Rep. 119, 10 L. R. A. 779), does not stand alone in holding that a false recital of fact does not constitute forgery. The false recital that Elizabeth G. Ford was the wife of II. N. Ford did not under the authorities constitute a false making of the instru[127]*127ment. In United States v. Wentworth, 11 Fed. 52, 55, it is said:
“To falsely make an affidavit is one thing; to make a false affidavit is another. A person may falsely make an affidavit, every sentence of which may he true in fact. Or he may actually make an affidavit, every sentence of which shall be false. It is the ‘false making’ which the statute makes an offense, and this is forgery as described in all the elementary books.”
In State v. Young, 46 N. H. 266 (88 Am. Dec. 212, 216), the court says:
“A man may make a statement in writing of a certain transaction, and may represent and assert ever so strongly that his statement is true, but if it should prove that by mistake he is in error, and that his statement is entirely wrong, that could not he forgery; and suppose we go further, and admit that the statement was designedly false when made, and so made for the purpose of defrauding someone, it does not alter the case: it is not forgery. The paper is just what it purports to be, it is the statement of the man that made it; it is a true writing or paper, though the statement it contains may be false.”
To the same effect are United States v. Moore, 60 Fed. 738, 739; United States v. Glasener, 81 Fed. 566-568; United States v. Cameron, 3 Dak. 132 (13 N. W. 561); Territory v. Gutierrez, 13 N. M. 312 (84 Pac. 525, 5 L. R. A. (N. S.) 375); 12 R. C. L. 144.
‘ ‘ Where one executes and issues an instrument purporting on its face to be executed by him as the agent of a principal therein named, he is not guilty of forgery, even though he has in fact no authority from such principal to execute the same”: Mann v. People, 15 Hun (N. Y.), 155, 169; People v. Bendit, 111 Cal. 274 (43 Pac. 901, 52 Am. St. Rep. 186, 31 L. R. A. 831); State v. Taylor, 46 La. Ann. 1332 (16 South. 190, 49 [128]*128Am. St. Rep. 351, 25 L. R. A. 591); State v. Willson, 28 Minn. 52 (9 N. W. 28); In re Tully, 20 Fed. 812.
We can make no distinction between a false recital of agency and a false recital of the marriage relation.
The prosecution failed to prove a false making and the Circuit Court erred in denying appellant’s motion for a directed verdict. The judgment is therefore reversed. Beversed.
McBride, C. J., and Moore and Bean, JJ., concur.