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Charge Question

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December 29, 2004, 17:32
Martin E. Braddy
Charge Question
In a forgery by making case where we have no evidence where the forgery was made but the property affected is located in our county, how do we word the jury charge to not require the jury to find beyond a reasonable doubt that the offense occurred in our county? The venue statute allows for the person to be prosecuted in the county where the property affected is located, but I cannot find a charge instruction that allows for a conviction without proof that the making occurred in our county. Help, the trial is coming up pretty soon!
December 30, 2004, 10:40
WHM
Why is it charged as a forgery by making instead of possession of the forged instrument (which you can presumably prove occurred in your county)?

Regardless, check out CCP 13.02, which provides:
"Forgery may be prosecuted in any county where the writing was forged, or where the same was used or passed..."

Followed by 13.17:
"...the indictment...may allege that the offfense was committed in the county where the prosecution is carried on. To sustain the allegation of venue, it shall only be necessary to prove by the preponderance of the evidence that by reason of the facts in the case, the county where such prosecution is carried on has venue."

Here is a sample charge:
"You are further charged as the law in this case that the venue for the trial of the offense of Forgery is in the county where the writing was forged, or where the same was used or passed (or whatever else from 13.02 works for you).

"The burden of proof is on the State to prove venue by a preponderance of the evidence.

"The term "preponderance of the evidence" means the greater weight of the credible evidence.

"Now, therefore, even if you find from the evidence beyond a reasonable doubt that the defendant did commit the offense of forgery as alleged in the indictment, but you find that the State has failed to prove venue as alleged by a preponderance of the evidence, you will acquit the defendant and say by your verdict "Not Guilty."
(This is from McCormick's. If there was no serious challenge to venue, I might amend that last paragraph to say something like "If you find that the State has proven venue as herein defined, then you will find that the offense, if any, was committed in ____ County as alleged in the indictment." Or words to that effect, i.e. simply instructing the jury that they should not be concerned about the allegation as to the county.