People v. Berman , 117 Cal. App. 334 ( 1931 )

I concur in the judgment. I do not concur entirely in the criticisms of appellant's brief, although it is too perfervid in its eloquence. While we may find that the positions taken by appellant are not sound, nevertheless, his propositions are clearly stated, together with abundant citations of authority which appellant thinks are in support of his position.

The verified statement by which appellant sought to disqualify the trial judge from further proceeding in the case is found in the clerk's transcript, beginning at page 103. It was filed on the eighth day of August, 1930, only two days before the time when, in the regular course of procedure, the power of the court to pronounce sentence would have expired. When the time has thus expired without the imposing of sentence the defendant becomes entitled to a new trial, if he so demands. (Pen. Code, secs. 1191 and 1202.) It is argued by the attorney-general that section 170 of the Code of Civil Procedure could not have been intended to apply in favor of a party who has delayed his attempt to disqualify the judge to so late a date as was done in this case, and that if the defendant and appellant is sustained in his contention here, it would result that the defendant in a criminal case has it in his power to secure new trials adinfinitum. The appellant responds that under such circumstances the pendency of the proceeding for disqualification of the judge should be held to have suspended the requirements of the statute as to the passing of sentence, until the matter of such disqualification has been determined. As authority for the principle involved he refers to People v. Lauman, 59 Cal.App. 144 [210 P. 421]. However this may be, I am of opinion that appellant was too late in taking steps to establish the disqualification of the judge on the grounds of bias and prejudice. It is provided in section 170 of the Code of Civil Procedure (Stats. 1929, p. 958), as a limitation of the right of a party to institute a proceeding of this kind that "the statement of a party objecting to the judge, on the ground of disqualification, shall be presented at the earliest practicable opportunity, after his appearance and discovery of the facts constituting the ground of the judge's disqualification, and in any event before the commencement of the hearing of any issue of fact in the action or proceeding before such judge". Here it appears that all of the facts upon which defendant relied to establish the disqualification of the judge were known to him at least as early as the twenty-fifth day of July. No good reason appears why such charge of disqualifying bias and prejudice on the part of the judge should not have been made promptly at that time. Further I am satisfied that when a proceeding for disqualification of a judge is not instituted within the time permitted by the statute it is appropriate for the court to order that the disqualifying statement be stricken from the files. This is an appropriate method of signifying on the record the fact that no disqualifying proceeding is legally pending, and that the judge, notwithstanding the filing of such proceedings, will proceed to exercise his authority in the case.

[4] On point 5. I do not think that the court erred in allowing the prosecution to reopen the case to introduce additional evidence as was done. [5] On point 6. I do not think that the court erred in receiving in evidence testimony offered for the purpose of proving other separate and distinct offenses not charged in the indictment, in order to show defendant's intent to defraud, and his plan to do so. (People v. Whalen, 154 Cal. 472, 476 [98 P. 194].)

[6] Point 7 presents a more serious and a more doubtful question. Appellant contends that the court erred in overruling his objections to the testimony of certain witnesses with reference to the purported overissue of the stock of the Julian Petroleum Corporation, and in denying appellant's motion to strike said testimony. (See appellant's opening brief, p. 183 et seq.) This evidence had relation to the question of overissuance of stock, that is to say, the question whether at a particular time there was or had been an issue of stock of the corporation in excess of the 600,000 shares authorized by the corporation commissioner. The court found that it was not reasonably practicable to present the original detailed evidence as the same might be found in the records of the corporation. These were so voluminous and involved so many details that the only practical method was to present the result of investigations made by witnesses. For that purpose these persons having qualified themselves as accountants and auditors of account books, were allowed to testify. Of the propriety of such procedure I have no doubt. But in such case the expert ordinarily will have prepared himself by an examination of the original record. In the instant case in some instances the testimony was not based directly upon original records, and so did not to the fullest extent comply with the rule. But a reading of the entire testimony of these witnesses on the subject in question is very convincing to the fact that the stock books, ledgers, etc., of the Julian Petroleum Company had passed into the hands of a receiver, and that the testimony of these witnesses was based upon an examination of those documents as found in the possession of the receiver. With due regard to the right of the defendant to be confronted by the witnesses against him, the practical necessities of the administration of justice require that in relation to complicated transactions involving the use of numerous and extensive documents, the results of examinations made out of court should be allowed to be received as evidence in such a case. So long as this is done without infringement upon the substantial rights of the defendant, no complaint of such procedure should be made. Another and further reply to this point of appellant is that his own deposition as read in evidence shows that, at the period of time in question in this case, he was well aware of the fact that a large overissue of stock of the corporation had been accomplished and that he himself had been dealing in such overissued stock. This being so, he could not be seriously prejudiced by an error of the character of that of which he now complains.

Point 8 of appellant's brief is that counts IV and V of the indictment on which he was convicted do not, nor does either of them, state facts sufficient to constitute a public offense under section 470 of the Penal Code. In count IV of the indictment the defendant was accused of "the crime of forgery of fictitious name on endorsement", a felony, committed as follows, to wit: That the defendant did wilfully, unlawfully, feloniously, falsely and fraudulently, and with intent then and there to cheat and defraud the Julian Petroleum Corporation and others to the grand jury unknown, make and forge the fictitious name of F.C. Waters to and upon the back of a certain certificate of stock of the Julian Petroleum Corporation, which said certificate of stock was in the words and figures as follows, to wit: Here follows a copy of the certificate of ownership of 100 shares of the stock of one F.C. Waters "transferable only upon the books of said corporation by the holder hereof in person or by duly authorized attorney upon the surrender of this certificate properly endorsed". On the back of the certificate was indorsed a form of transfer in blank to which was signed the name F.C. Waters. It was further charged that the defendant, well knowing that the fictitious name of Waters was so falsely made and forged to and upon the back of the said certificate of stock, did, then and there, wilfully, unlawfully, fraudulently, falsely and feloniously pass, utter and publish the fictitious name of the said F.C. Waters, so falsely made and forged to and upon the back of the said certificate of stock as aforesaid, and the said certificate of stock with the fictitious name of F.C. Waters so falsely made and forged to and upon the back thereof as true and genuine, with intent, etc. Count V is the same as count IV, except that it refers to another certificate of stock and another fictitious name. On page 165 of the appellant's brief he prints such parts of section 470 of the Penal Code as he considers pertinent here, as follows: "Every person who, with intent to defraud, signs the name of another person, or of a fictitious person, knowing that he has no authority so to do, to . . . any certificate of any share, right, or interest in the stock of any corporation . . . or utters, publishes, passes, or attempts to pass, as true and genuine, any of the above-named false, altered, forged, or counterfeited matters, as above specified and described, knowing the same to be false, altered, forged, or counterfeited, with intent to prejudice, damage or defraud any person . . . is guilty of forgery." The contention of appellant that these two counts do not, nor does either of them, state a public offense is amplified in the further propositions: (1), that there is no such specific offense known to the law of California as forgery of fictitious name on indorsement of a certificate of stock as set out in said count; and, (2), that if, nevertheless, this court should be of opinion that the above-quoted section 470 of the Penal Code denounces forgery of fictitious name on indorsement of the certificate of stock as a specific offense then, and in that case, said offense is not alleged in the said counts according to law. An examination of the section will show that in addition to its enumeration of "any certificate of any share . . . in the stock of any corporation", the section also includes the words "any transfer or assurance of money, certificates of shares of stock", etc. Reading the words of the indictment, including the copies of the certificates of stock and of the blank certificates of transfer on the back of the certificates of stock, and considering with said language of the indictment the terms of the statute, it appears that the defendant must have understood that by the indictment he was charged with having forged the stated fictitious name to a blank certificate of transfer of the share of stock described in count IV, and likewise the similar blank certificate of transfer in count V. It is of course true, as counsel for appellant states, that a certificate of stock is not a negotiable instrument and that there is no such thing as an indorsement of a certificate of stock in the sense of the Negotiable Instruments Law. But there are instances where the word indorsement is commonly used to express the meaning of a transaction which is not an indorsement of a negotiable instrument. This is illustrated in the instant case, where the certificate of stock itself provided for transfer of the shares "upon the surrender of this certificate properly indorsed".