DocketNumber: Docket No. 2150.
Citation Numbers: 11 P.2d 441, 123 Cal. App. 299
Judges: TAPPAAN, J., <italic>pro tem.</italic>
Filed Date: 5/4/1932
Status: Precedential
Modified Date: 1/12/2023
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 301 The defendant was tried upon four counts of issuing checks without sufficient funds and two counts of forgery. The jury's verdict was guilty upon all six counts. This appeal is from the judgment on the verdicts and from the order of the court denying defendant's motion for a new trial.
The evidence discloses that the defendant made use of the same general plan in all the transactions involved in the charges made against him. In each instance the defendant opened a checking account with a bank by depositing with the bank a check drawn by him upon a bank that was without the state of California. Some of these checks so deposited purported to be certified by the bank upon which they were drawn. In some cases of the accounts so opened by the defendant, he returned and attempted to draw against the account. In one instance he did withdraw funds from such an account. In all the deposits so opened by defendant, the checks with which the accounts were opened were in due course of business returned unpaid and duly protested. The accounts in the several banks so opened by defendant, no two in the same institution, were opened in different names and different addresses were given. The prosecution introduced testimony that the checks and other instruments alleged to have been written by defendant were all written by the same person. The defendant produced a fellow resident of the county jail, who testified that they were not written by the same person. The question of the verity of this expert testimony is one of fact for the jury. *Page 302
[1] From an examination of the record here, there is found ample evidence to support all of the verdicts rendered as against defendant, and to this evidence defendant presents objection only to that phase of the evidence involving the question as to the fact that the various checks presented by defendant were fictitious and drawn against nonexistent funds. The prosecution in all instances, to support this necessary element of the charges, introduced in evidence "Protests" of the several instruments. This method of proof of this fact in actions of a civil nature has been sanctioned from time immemorial. It is recognized in such cases by both common-law and statutory enactment. In matters involving criminal charges, section
"Where such check, draft or order is protested, on the ground of insufficiency of funds or credit, the notice of protest thereof shall be admissible as proof of presentation, nonpayment and protest and shall be presumptive evidence of knowledge of insufficiency of funds or credit with such bank or depositary, or person, or firm, or corporation.
"The word `credit' as used herein shall be construed to mean an arrangement or understanding with the bank or depositary or person or firm or corporation for the payment of such check, or draft, or order." (The section as enacted was not italicized.)
[2] Defendant states his position as follows: "Our contention that the defendant was deprived of the right to due process of law is based wholly upon the fact that the defendant, upon trial, was not confronted by the witnesses against him: that is to say, those witnesses whom the State must necessarily have introduced in order to prove the charges made."
The contention as advanced by defendant here denies the power of the legislature to provide for and create presumptions in the law of evidence. This power is now universally recognized by the courts, both state and federal. In the case of Casey v. UnitedStates,
The legislature in amending section
[4] Defendant urges that the intent to defraud, an element of the crimes with which defendant stands charged, is not established by the evidence. In the two cases where defendant is charged with forgery, the evidence establishes that defendant withdrew substantial sums as against the checks. In the other cases, there is evidence of a substantial character that defendant attempted to withdraw funds from some of the accounts opened by him. Under section
[5] The defendant at the time of trial offered to prove that the ultimate purpose of his transactions with the banks *Page 305 was to impress upon those institutions the desirability of a checking system perfected by him. There was no error in the exclusion of this evidence. That the secondary purpose of a criminal act is lawful is not a matter of defense.
The record fails to disclose any error by the court in the matter of cross-examination of defendant's witnesses. There was no abuse of discretion by the court in that regard.
The judgment and order appealed from are affirmed.
Yee Hem v. United States , 45 S. Ct. 470 ( 1925 )
Casey v. United States , 48 S. Ct. 373 ( 1928 )
Wilson v. United States , 16 S. Ct. 895 ( 1896 )
People v. Scott , 24 Cal. 2d 774 ( 1944 )
People v. Hollander , 163 Cal. App. 2d 379 ( 1958 )
People v. Megladdery , 40 Cal. App. 2d 643 ( 1940 )
People v. Gaines , 106 Cal. App. 2d 176 ( 1951 )
State v. Dwyer , 57 Haw. 526 ( 1977 )
State v. Campbell , 70 Idaho 408 ( 1950 )