HANSON, Justice.
Originally, the defendant, C. Gorham, was charged before the committing magistrate and by the information filed by the district attorney with the crime of forgery in two counts; the first count alleging that he forged a bank draft in words and figures as follows:
“The Continental National Bank of Salt Lake City
“Salt Lake City, Utah, Dec. 30, 1932
“At Sight Pay to the order of C. Gorham $19.50 Nineteen 50/100 Dollars
“Value Received and charge to account of with exchange.
“Sam L. Bringhurt,
Murray, Utah.
“To Continental Nat. Bank, Salt Lake City, Utah”
—by. forging and counterfeiting the name of Sam L. Bring-hurt. The second count charged him with uttering and passing said draft as genuine with intent to defraud, knowing the same to be false and forged. He was convicted on the second count, and appealed to this court from the judgment of conviction. The judgment was reversed by us and the matter remanded to the district court of Salt Lake county for a new trial.
State
v.
Gorham,
87 Utah 86, 48 P. (2d) 447.
Some time after the former appeal and before the time of the second trial, a letter “s” had been inserted by pen and ink in the name “Bringhurt” as it appeared in the information in both counts, so that the name read “Bringhurst” wherever it appeared in each count. At the commencement of the retrial of the case, counsel for defendant called the court’s attention to this ink insertion. Upon motion of the prosecution these ink insertions were ordered stricken so that the information w'as restored to its original wording and lettering. No exception was taken to this ruling of the court.
Before the ink letters “s” were stricken, defendant moved for a dismissal of the first count on the ground that at the former trial defendant had been convicted on the second count only, and could not be retried on the first count with
out being put in jeopardy twice on the first count, and the verdict of the jury on the first trial was res ad judicata as to the first count. Defendant also moved for a dismissal of the entire information on the ground that by the insertion of the letter “s” in ink, as above indicated, the information had been so amended as to be at variance with the complaint before the committing magistrate and with the information upon which defendant had been arraigned and to which he had pleaded not guilty. The trial court denied both motions.
After the prosecuting attorney had made his opening statement to the jury, defendant moved for a dismissal on the ground that such statement did not disclose facts sufficient to constitute a public offense, in that the name charged as having been forged was the name “Sam L. Bringhurt,” whereas the prosecuting attorney stated that the state would prove that a forgery was committed by having Samuel E. Bringhurst testify that the signature “Sam L. Bringhurt” was not his signature.
Just before the state rested its case, it was permitted to file an amended information charging defendant with the crime of forgery in two counts. Only as to the first count did the amended information differ in any particular from the original information; the second count in both the original and amended information being exactly the same. The amendment to the first count charged that the defendant “did forge and counterfeit the name and signature of Samuel E. Bringhurst by then and there signing the name Sam L. Bringhurt to said draft”; that the name Sam L. Bringhurt on the draft and Samuel E. Bringhurst represented the same person, and in signing the name Sam L. Bringhurt to said draft, defendant intended to sign the name Samuel E. Bring-hurst.
Under the forms of verdict submitted to the jury, they were permitted to find defendant guilty of forgery as charged in the first count, or guilty of forgery as charged in the second count, or not guilty. The jury brought in a verdict finding defendant guilty of forgery as charged in
the second count of the information. Defendant appeals from the judgment of conviction entered on such verdict. We have detailed the proceedings had during the trial, as defendant relies upon errors which he asserts occurred through the action of the court in such proceedings. We shall proceed to dispose of the questions raised by defendant, and refer to the evidence as we proceed.
Defendant first contends that the court, by permitting the state to amend its information after the trial had commenced, violated sections 7, 12 and 13 of article 1 of the Constitution of Utah, in that said amendments charged an offense different from that upon which the defendant had been arraigned or had had a preliminary hearing. It is claimed that striking the ink letter “s” from the name “Bringhurst,” where such name appeared in the information, was an amendment having the effect of changing the crime charged. There is nothing in the record to show that the insertion by ink of the letter “s” had been done pursuant to an order of the court by way of amendment. So far as appears, the insertion of that letter was without authority. The removal of that letter simply restored the information to its original condition, and cannot be said to be an amendment. Defendant had been arraigned and had his preliminary hearing on the charge contained in the information as it stood with the letter
“s”
stricken out. No constitutional right of defendant was violated by restoring the information to its original condition.
It is argued that permitting the state to amend the information to allege that defendant was guilty of forgery by forging the name of Samuel E. Bringhurst by signing the name Sam L. Bringhurt, that Samuel E. Bringhurst and Sam L. Bringhurt represented the same person, and that defendant in signing Sam L. Bringhurt intended to sign the name Samuel E. Bringhurst, changed the offense and the nature of the offense charged. We deem it unnecessary to enter into any discussion of the question
thus raised, since this amendment affected the first count only, and the jury specifically found, by the form of its verdict, defendant guilty of the crime of forgery only as charged in the second count. The defendant, therefore, was. not convicted of having falsely forged the draft either as originally alleged or as alleged under the amended information. To find defendant guilty under the second count, it was not essential that defendant should have personally affixed the forged name to the draft.
State
v.
Allen,
116 Mo. 548, 22 S. W. 792. Under section 8270, Comp. Laws Utah 1917, now section 103-24-1, R. S. Utah 1933, the crime of forgery as there defined may consist of the making of the false instrument or of the passing of an instrument known to be false; or both making and passing such instrument.
State
v.
Jones,
81 Utah 503, 20 P. (2d) 614. The doing of either of such acts constitutes the crime of forgery, and even though the proof fails to show that the defendant personally falsely forged the instrument, it may be sufficient to show the passing of an instrument known by him to be false or forged, and this would constitute the crime of forgery. The different acts defined by the statute as constituting forgery may be alleged in the same count or in separate counts.
State
v.
Jones,
supra;
State
v.
Green,
89 Utah 437, 57 P. (2d) 750. A finding of guilty of the act described in the second count is not a finding of guilty of the act described in the first count, and does need a finding of guilty of the act charged in the first count to support it. So far as the first count and any prejudice to defendant from the amendment thereof are concerned, defendant cannot be heard to complain on this appeal, as he was not convicted under said count. “A conviction and judgment upon one of several counts with no verdict upon the others, is an acquittal as to the other counts.” 16 C. J. 1107. We think such rule is especially applicable where, as here, the jury were given separate forms of verdicts covering each count. It is clear that the jury did not consider defendant guilty as charged in the first count.
What has been said disposes of defendant’s contention that the court erred in denying his motion to strike the first count and his motion to dismiss the entire information on the ground of variance between the information as filed and the complaint upon which he was held for trial. It likewise disposes of defendant’s objection to the third instruction of the court to the jury defining the crime charged in the first count, as amended. As to defendant’s motion to dismiss the information after the opening statement had been made to the jury by the prosecuting officer, we have examined that statement and are convinced that the trial court committed no error in denying said motion.
Defendant next urges that the verdict of the jury is against the law as declared by the court in its instructions Nos. 7 and 8. Instruction No. 7 informed the jury that they could not convict defendant of the crime charged in the first count unless they found that defendant wrote the said draft and was not authorized to write and execute the same by Sam L. Bringhurt. Since defendant was not convicted of the crime charged in the first count, it cannot be said that the verdict of the jury is against the law as contained in instruction No. 7, and we need not further consider that instruction.
By instruction No. 8 the jury were instructed that before they could find defendant guilty under the second count alleged in the information they must first find that said draft was a “forged instrument and was not drawn, made or executed by or with the consent of Sam L. Bringhurt. * * * ” It is argued that there is no evidence to support a finding that said draft was not executed by or with the consent of Sam. L. Bringhurt.
The evidence shows that some time prior to December 31, 1932, the defendant came to the place of business operated by the Goodrich Silvertown Company, at 131 East First South street in Salt Lake City, and purchased some antifreeze for his automobile, and left a tire to be vulcanized.
He returned on the date above mentioned, and gave the draft in question in payment of the antifreeze and the tire. As to what was said and done at the time he gave the draft, the state’s witnesses testified as follows: Arthur C. Knight testified that defendant stated that the Sam Bringhurst, whose name was on the check (draft), was in the automobile business in Murray, and was in the bishopric of one of the wards in Murray. Statements were made by those present that they thought Bringhurst was doing a good job down there in the automobile business, and he was generally admired and known by the boys in the group present during the conversation. Defendant indorsed the back of the draft with a fountain pen which he produced from his pocket. Mr. Knight obtained the money from another employee, Mr. Brandley, for the draft, and gave defendant the change, amounting to something over $15. The draft was approved for acceptance by Mr. Pearson, service manager for the Goodrich Silvertown Company.
Mr. Brandley, who was in charge of the gasoline department, testified he heard the conversation between defendant; and Pearson. When defendant handed Pearson the draft, the latter stated: “This is Sam Bringhurst at Murray. I know him very well.” Defendant agreed that he was the Mr. Bringhurst, and also stated that he was a bishop or official in the Mormon Church. Pearson then stated he knew Bringhurst, that he was a successful business man, and that he had no hesitancy in cashing this check.
Mr. Bradford, another employee of the Goodrich Silver-town Company, testified that defendant told Pearson that the draft was that of Mr. Bringhurst from Murray. Mr. Pearson testified that he O.K.d the check and defendant talked about the man in the automobile business. The witness thought it was Bringhurst’s check, and stated in the conversation with defendant that it was Samuel L. Bringhurst, the automobile dealer at Murray. Pearson further testified he had known Samuel L. Bringhurst who had been in the automobile business since 1925; that his name was Samuel L.
and not Samuel E. He did not.scrutinize the check closely. The conversation relative to Bringhurst took place before the check was cashed.
The auditor employed for the past twenty-six years by the Continental National Bank & Trust Company, on which bank the draft was drawn, testified that during December, 1932, and January, 1933, there was no account, and that there had never been an account in that bank, in the name of Samuel L. Bringhurst or Sam L. Bringhurt, or in the name of Samuel E. Bringhurst.
Samuel E. Bringhurst testified that he had lived at Murray, Utah, most of his life; that he had. been the bishop of the Murray First Ward continuously since 1928; that from 1922 until March, 1932, he was engaged in the automobile business in Murray; that he knows no person residing in Murray or its vicinity by the name of Sam L. Bringhurt or any one by the name of Bringhurt; that no one by the name of Bringhurst, other than himself, has been engaged in the automobile business in Murray; that the signature “Sam L. Bringhurt” on the draft is not his (the witness’s) signature; that he did not authorize any one to affix that signature or to sign his name to any draft or check, and did not authorize the defendant to sign his name to any negotiable instrument; that he has known defendant since 1930. The fair inference from his testimony is that no one by the name of Bringhurst has held the church office of a member of a bishopric at Murray, Utah, except his brother, Henry Bring-hurst.
The defendant takes the position that testimony of Samuel E. Bringhurst would not permit the jury to find that Sam L. Bringhurt did not sign or consent to the signing of the draft as required to be found by the jury under instruction No. 8, above referred to, in order to find defendant guilty under the second count. If the evidence adduced by the state is not sufficient to establish that the Samuel E. Bringhurst who testified is the same person as the person whose name appears on the draft, then it would
seem to follow, so far as the proof before us is concerned, that the name appearing on the draft would be that of a fictitious person. Under the rule as it generally prevails, it would make no difference, so far as a conviction of forgery is concerned, whether the name on the questioned instrument is that of a real or fictitious person. 26 C. J. 927;
People
v.
Browne,
118 App. Div. 793, 103 N. Y. S. 903 (affirmed 189 N. Y. 528, 82 N. E. 1130); note 9 A. L. R. 407. In this state, however, we have, besides the general statute defining forgery, sections 103-24-1 and 103-24-4, R. S. Utah 1933, imposing for forgery a penalty of imprisonment in the state prison for a term of not less than one year nor more than twenty years, and another section, 103-24-7, which provides that:
“Every person who makes, passes, utters or publishes, with intention to defraud any other person, * * * any fictitious bill, note or check purporting to be the bill, note, check or other instrument in writing for the payment of money or property of some bank * * * or individual when in fact there is no such bank * * * or individual in existence, knowing the bill * * * to be fictitious, is punishable by imprisonment in the state prison for not less than one nor more than ten years.”
It will be noticed that the penalty for the crime covered by the section quoted is less than the penalty fixed generally for forgery under section 103-24-4. Our statutes are similar to sections 470, 473, and. 476, Penal Code, originally in force in California. It was held in the case of
People
v.
Elliot,
90 Cal. 586, 27 P. 433, 434, that a conviction for forgery of a check under section 470 could not be sustained where facts disclosed that a fictitious name had been used; that the charge should have been under section 476. The court there points out that the facts before it did not disclose any ground for the application, of the doctrine of idem sonans. The court said:
“The law appears to recognize a distinction between forged instruments purporting to have the signature of a person in existence, and those where the signature is purely and entirely fictitious. * * *
section 470 of the Penal Code is quite broad in its terms, and, in the absence of said section 476, it might probably be construed broad enough to includei fictitious instruments as referred to in said section; but, the legislative mind having been directed specially to that class of instruments with reference to the offense of forgery, it would seem the act of making or passing a fictitious check could only be prosecuted when brought within the requirements and conditions of that section.”
The rule thus announced was followed in
People
v.
Eppinger,
105 Cal. 36, 38 P. 538. In
People
v.
Terrill,
133 Cal. 120, 65 P. 303, the above cases were approved, but the court held that the act of passing or making a fictitious check, as prescribed in section 476, was a forgery, but it could be prosecuted only when the allegations of the information showed an offense under that section. In
People
v.
Chretien,
137 Cal. 450, 70 P. 305, 307, the court decided that section 476 applied only to the instruments therein specifically mentioned, and that the making of a deed in the name of a grantee not in existence was not covered by section 476, but such act should be prosecuted under section 470. The court said:
“We now hold that the forgery of any fictitious instrument mentioned in section 470 and not mentioned or included in section 476, falls within the former section. We further hold that the information brought under section 470 is sufficient without alleging that the deed was fictitious.”
Under the California law, as thus construed, the making and passing of some fictitious documents would be forgery under the general forgery definition, while, as to other kinds of documents, such acts would fall under a special statute requiring the allegation of certain facts in the information not required by the general forgery statute. This peculiar situation was remedied within a short time after the rendition of the opinion in the case last cited by the Legislature adding the word “fictitious” in the definition of forgery. Thereupon, the court in
People
v.
Jones,
12 Cal. App. 129, 106 P. 724, held that the crime of forgery could be committed
by signing the name of a fictitious, as well as a real, person to any of the instruments enumerated in section 470'.
In the case of
Moncref
v.
State,
33 Wyo. 192, 236 P. 1037, the Wyoming court concluded that the signing of a fictitious name to a check was a forgery under the general forgery statute, notwithstanding a special section of the statutes covering fictitious documents; that the latter section did not describe a crime distinct from forgery as defined at common law. The case of
State
v.
Stegner,
276 Mo. 427, 207 S. W. 826, is cited and relied upon.
It is difficult to understand why a special statute should be enacted to apply to certain fictitious documents when the language of the statute defining forgery is broad enough to include the making and uttering of fictitious documents, and names the very documents covered by the special statute. It is also difficult to understand why a lesser penalty should be provided. But, while the purpose of the enactment may not be clear, it would appear that the Legislature intended that where a fictitious bill, note, check, or other instrument for the payment of money was involved, the prosecution should proceed under section 103-24-7 and not under section 103-24-1, notwithstanding the crime would still be called “forgery.” In any prosecution for the making and passing of an instrument specified in section 103-24-7, the prosecuting officers, therefore, must initially consider whether the instrument involved will prove to be fictitious or not. Likewise, in the trial for forgery, this same question might arise depending upon the evidence adduced.
In the case before us no one by the name of Sam L. Bring-hurt was produced to prove the signature on the draft a forgery. The identity of the person answering to the name of Sam L. Bringhurt was not established by that kind of proof. Did the proof, therefore, fail to show that the name of a real person in existence had been affixed to said draft without his having written it or authorized or consented to its being written, so as to bring the crime, if any, under section 103-24-7 and not section 103-24-1?
The general rule is that identity of person is presumed from identity of name, and the burden is on him who seeks to dispute this presumption to rebut it.
McKinley Bros.
v.
McCauley,
215 Cal. 229, 9 P. (2d) 298;
In re
Orange,
272 N. Y. 61, 4 N. E. (2d) 417; 22 C. J. 92. Likewise, the rule is that names that have the same pronunciation so as to make applicable the rule of idem sonans, prima facie, designate the same persons. 19 Cal. Jur. 530. In
Napa State Hospital
v.
Dasso,
153 Cal. 698, 96 P. 355, 356, 18 L. R. A. (N. S.) 643, 15 Ann. Cas. 910, it was decided that the names “Dasso” and “Tasso” were idem sonans. The court uses the following language:
“Though a name be inaccurately written, still, if, when pronounced it conveys to the ear a sound practically similar to the correct name when pronounced, the rule of idem sonans obtains, and identity of person will be presumed from similarity of sound in the pronunciation of the names.”
See, also,
Rabben
v.
Benson,
43 Cal. App. 204, 185 P. 200;
State Board of Medical Examiners
v.
Buettel,
102 N. J. Law 74, 131 A. 89;
Johnston
v.
State,
65 Fla. 492, 62 So. 655;
Rhodes
v.
State,
74 Fla. 230, 76 So. 776.
In the last case cited it is stated that the rule of idem sonans
“should not be restricted to mean that the sounds produced by dissimilar spelling must be identical or indistinguishable from each other, but that they should be sufficiently alike in sound as not readily to suggest a difference to the mind of the hearer.”
The case of
Selby
v.
State,
161 Ind. 667, 69 N. E. 463, involved a prosecution for forgery. Speaking upon the subject now under consideration, the court said:
“We concede it to be well established in criminal prosecutions for forgery that the name charged to be forged must be proved as alleged in the indictment or information. * * * It is not essential, however, that the names be spelled in the same way, or that they be correctly spelled. If substantially the same sound is preserved, a variant or
thography will make no difference. The test always is, are the names as spelled idem sonans — have the same sound?”
From what has been said it must follow that whether the jury were justified in finding defendant guilty under the second count upon proof that Samuel E. Bringhurst did not sign or consent to the signing of the draft, under an instruction that to find defendant guilty they must find that Sam L. Bringhurt had not signed or consented to the signing of said draft, would depend upon whether the name Sam L. Bringhurt on the draft and the name Samuel E. Bringhurst, under the evidence, were idem sonans so that the person named on the draft could he presumed to be the witness Bringhurst. The evidence is uncontradicted that defendant represented and led the employes of the Goodrich Silvertown Company to believe that the draft was that of a Mr. Bringhurst who was in the automobile business in Murray, Utah, and was the bishop of one of the wards of the Mormon Church in that city. The draft itself gave Murray, Utah, as the address of the maker. Such representation and such address narrowed the identity of the maker of the draft to narrow limits. In a community the size of Murray, the number of men by the name of Bringhurst or Bringhurt that would fit that description would be exceedingly limited. These facts would tend to strengthen the presumption of identity of persons arising from the rule of idem sonans where the particular party thus designated was produced and testified and it appeared unlikely that any other person existed who could fill the description given. The evidence is clear that defendant did not pass the draft of a fictitious person, but passed it as the genuine draft of a person in existence known both to himself and the parties with whom he dealt.
The name on the draft and the name of the witness Bring-hurst were not so different as to exclude the rule of idem sonans. The first name “Sam” on the draft and the name “Samuel” of the witness are so commonly used as being the same name that no material variance
arises as to that part of the name. The initial “L.” in the one case and the initial “E.” in the other are likewise not such a variance .as to be material or prejudicial. 2 Wharton’s Crim. Evid. 1850, § 105;
People
v.
Smith,
108 Cal. 568, 37 P. 516. Although such difference properly is to be considered in testing the probative force of the inference of identity arising from similarity in names. The main difference between the names in this case is the omission of the letter “s” in the surname on the draft and its inclusion in the true name of the party represented to have made the draft.
We have examined a large number of cases involving the application of the rule of idem sonans. In the cases herein-above cited, the following names were held to be idem sonans as a matter of law: “Dasso” and “Tasso,”
Napa State Hospital v.
D
asso,
supra; “Veike and “Vieke,”
Selby
v.
State,
supra; “R. S. Southerland” and “R. G. Southerland,”
People
v.
Smith,
supra. In
People
v.
Gormach,
302 Ill. 332, 134 N. E. 756, 29 A. L. R. 1120, the court held the names “Wein-straub” and “Weintraub” were idem sonans. In
People
v.
Harrison,
14 Cal. App. 545, 112 P. 733, it was held that in view of the rule of idem sonans there was no variance between the names “William Strandberg” and “William Elmer Standberg” as would affect the validity of the judgment of conviction. The case of
Santolini
v.
State,
6 Wyo. 110, 42 P. 746, 71 Am. St. Rep. 906, involved a conviction for uttering a forged bank check. The name signed to the check was “G. W. Ewareeds.” The information charged the uttering of a check purporting to be that of “G. W. Edwards.” G. W. Edwards testified the check was not his, and the signature thereon was not his. The court held that the difference in names was not “so clear and marked as to render it a palpable variance as a matter of law.” In
Marshall
v.
State,
116 Neb. 45, 215 N. W. 564, 567, it was held that the variance between the name “H. A. Timnernan” on the note and the name “H. A. Timmerman” intended as the maker did not prevent the application of the rule of idem
sonans, and did not invalidate a conviction for forgery and uttering a forged note. The court said:
“The names are practically idem sonans, and the person writing the name to the forged note intended that it should be taken for the name ‘Timmerman,’ and having written it with that intention in such a way as might deceive a person of ordinary prudence, his fraudulent purpose and felonious intent to commit a forgery are as clearly manifested as they would have been if the spelling had been entirely correct.”
We think that the names “Bringhurt” and “Bringhurst” are of such similarity in sound that the doctrine of idem sonans is applicable. Sam L. Bringhurt and Samuel E. Bringhurst are shown to be the same person when that doctrine is applied, and, in the absence of any proof by defendant to the contrary, there was sufficient evidence under all of the facts upon which the jury could find that “Sam L. Bringhurt” had not signed or consented to the signing of the draft in evidence. The only evidence in behalf of the defendant was given by Robert F. White, who testified the defendant had. made him acquainted with a Sam Bringhurt in Reno, Nev. Such testimony would have no bearing on the identity of the person whose name was on the draft and there represented as being at Murray, Utah, and in nowise contradicts the effect of defendant’s representations as to the identity of the maker of the draft when he passed the same.
While we think that the rule of idem sonans is applicable under the facts of this case as a matter of law, and must, therefore, conclude that the jury could not have been misled in arriving at its verdict because of the dissimilarity in names, still, if it be contended that there was such dissimilarity as to raise a question of fact as to whether the rule should be applied, defendant cannot now complain that that issue was not presented to the jury. An instruction covering the rule of idem sonans would have been proper and should have been given if requested. But under the authority of the last two cases above cited, defendant, having failed to request an instruction covering that rule,
cannot complain of the omission for the first time upon appeal. In addition the court instructed the jury by instruction No. 10 to take into consideration all the facts and circumstances of the case disclosed by the evidence in determining the identity of Sam L. Bringhurt. It is fair to conclude that the jury, in view of instruction No. 8, found Sam L. Bringhurt to be in fact Samuel E. Bringhurst.
Defendant complains of the court’s instruction No. 4 which defines the elements making up the crime charged in the second count, for the reason that there is no evidence that the instrument was a forged instrument. This objection is disposed of adversely to defendant’s contentions by what has already been said. Likewise, in view of the conclusions to which we have come, there is no merit to defendant’s exception to the giving of instruction No. 10. The identity of Sam L. Bringhurt had a most material bearing upon the question of defendant’s guilt or innocence under the allegations contained in the second count, and in determining that question the jury were entitled to consider all the facts and circumstances disclosed by the evidence.
Defendant assigns as error the reception of certain evidence by the court objected to by defendant. The state was permitted to read in evidence the testimony of Elias A. Smith, a handwriting expert, given at the former trial, to the effect that the handwriting on the face of the draft alleged to have been forged, including the signature “Sam L. Bringhurt” was the same as the indorsement thereon by defendant and the writing appearing on another draft admitted in evidence as a sample of defendant’s handwriting. It was stipulated, at the time the state asked leave to read this testimony, that Smith was in California and therefore not available to testify in person. However, it is objected that no foundation was laid for
reading
this testimony by a showing of due diligence on the part of the state to subpoena Smith and have him present. A deputy sheriff testified he had left a subpoena with a stenographer working in Smith’s office at the state capitol on a Friday
evening three days before the time set for the trial. The stenographer informed the deputy that Smith would not be back to the office that day, but she would see that he got the subpoena. There was also evidence to show that an effort had been made the day previous to the tender of the testimony of Smith at the former trial to locate and subpoena him and information was then received that he was in California.
When it was stipulated that Smith was absent from the state of Utah, we think this testimony given at the former trial in the district court, a court of record, could be read in evidence by virtue of section 105-45-3, R. S. 1933, which provides:
“Whenever in any court of record the testimony of any witness in any criminal case shall be stenographically reported by an official court reporter and thereafter such witness shall die or be beyond the jurisdiction of the court in which the cause is pending, either party to the action may read in evidence the testimony of such witness, when duly certified by the reporter to be correct, in any subsequent trial of, or proceeding had in, the same cause, subject only to the same objections that might be made, if such witness were upon the stand and testifying in open court.”
See
State
v.
Greene,
38 Utah 389, 115 P. 181. The above section by its terms does not require any showing other than that the witness is dead or is beyond the jurisdiction of the court in which the cause is pending to permit the reading in evidence of such testimony. There is nothing in the record to indicate any bad faith on the part of the state in not procuring the witness to be present, or that the prosecution had anything to do with his absence from the state. If it be assumed that some showing of diligence to obtain and have the witness present in person is required, inferentially still we are not prepared to say there was such a failure by the state to show diligence in that regard as would require us to hold that the deposition should not have been received in evidence.
Objection was made to the reading of Smith’s opinion that the handwriting on the face of the draft was the same as the handwriting contained in the indorsement and in another instrument admitted to be in defendant’s handwriting, upon the ground that no proper foundation had been laid qualifying him to express an opinion. The evidence as to his qualifications shows that the examination of questioned documents is a part of his business; that he has made a study of handwriting; that he has qualified in the district court and city court and other courts as a handwriting expert. While the evidence as to his qualifications is somewhat meager and does not disclose the details of his experience, we think that sufficient was shown to sustain the trial court’s discretion in admitting the opinion in evidence. By its verdict, the jury acquitted defendant of the charge that he had forged the signature affixed to the draft as the maker, so that, apparently, they were not influenced by the opinion read into the evidence. The verdict finding defendant guilty under the second count would be sustained under the evidence regardless of whether the defendant affixed the signature to the face of the draft or not.
Defendant complains that the trial court erred in overruling his objections to certain questions asked Samuel E. Bringhurst. The witness was asked whether the signature on the draft was his; whether he authorized or consented to any one signing the signature thereon; whether he had ever authorized or consented to any one signing his name to a draft or check. We think all of this testimony was relevant and material. The evidence disclosed without dispute that when the draft was presented, defendant represented it to be the draft of the witness Bringhurst. Under such circumstances, the state was entitled to show that Bringhurst had had nothing to do with the making of the draft, and had not authorized or consented to its making. Indeed, it was because Bringhurst had not testified at the first trial that he had not authorized or consented to the signing of the maker’s name to the draft that we reversed
the first conviction and granted a new trial. Likewise, there is no merit to defendant’s objections to questions asked Bringhurst calculated to show that he did not know any person residing in Murray or its vicinity by the name of Sam L. Bringhurt. Such questions were material to show that there was no person, except the witness, fitting the representations made by defendant when he presented the draft and would tend to give strength to the presumption of identity of persons arising by the application of the rule of idem sonans.
During the cross-examination of one of the state’s witnesses, the prosecution interposed objections to certain questions. Counsel for defendant asked, “Do you want me to state my theory before the jury?” The prosecuting attorney replied, “I don’t think it is necessary.” Defendant’s counsel stated, “I want to advise the court of my theory.” To this the prosecution replied, “Let the defendant tell the theory later on.” It is claimed this was misconduct as a statement by the prosecuting attorney to let the defendant take the stand and tell his story, and is tainted with the same vice as a comment on the failure of the defendant to testify in his own behalf. While the statement by the prosecuting- attorney was not called for, we cannot see that it was misconduct to make it, or how it could be construed to have the same consequences as a comment on defendant’s failure to testify. It was made while the state was putting on its case and before any one could have any intimation that defendant was not going to testify in his own behalf.
The defendant assigned as error the court’s refusal to give certain requested instructions. There is no discussion in his brief of this assignment; defendant being content with including such assignment of error under a list purporting to contain, “Errors Relied On.” We have examined these requested instructions, and are of the opinion there is no merit to defendant’s position in relation thereto. Likewise, de
fendant lists as “Errors Relied Upon,” without any discussion the refusal of the trial court to grant a new trial.
We are satisfied, as already indicated, that the evidence was sufficient to justify and sustain the verdict of the jury, and that the record discloses no errors which would justify a new trial. The judgment is affirmed.
FOLLAND, C. J., and MOFFAT, J., concur.