Lead Opinion
Thе 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 attеmpted 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 protеsted. The accounts in the several banks so opened by defendant, no two in the same institution, were opened in different nameá 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.
*302 Prom 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 faet'that the various cheeks " 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 476a of the Penal Code, as amended in 1929, made provision for this class of evidence. The constitutionality of this section is here attacked by defendant. The section referred to reads in part as follows :
“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 ‘сredit’ 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.)
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 Stаte 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.
United States,
The legislature in amending section 476a of the Penal Code was, without doubt, actuated by the decision of the Supreme Court in the case of
People
v.
Frey,
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 thаt defendant attempted to withdraw funds from some of the accounts opened by him. Under section 476a of the Penal Code, it is immaterial whether financial detriment be suffered; the gist of the offense is the fraudulent intent with which the check was drawn or delivered and knowledge by the person issuing it that at the time he was without funds or credit in the bank upon which the check was so drawn.
(People
v.
Wilbur,
The defendant at the time of trial offered to prove that the ultimate purpose of his transactions with the banks *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.
Concurrence Opinion
I reluctantly concur in the judgment. My consent to the affirmance of the judgment has resulted solely from the compelling force of the precedents as established by the cases to which, in the opinion of my associate, attention has been directed. It is clеar that the constitutional guaranty of “due process of law” is in great danger of being set at naught. With but slight extension of the rule, either as promulgated by the statute, or as judicially announced preceding its enactment, in any criminal prosecution in which the district attorney may find it difficult to produce evidence of the guilt of the defendant, he may invoke the doctrine of “ab inconv&nienti” and thus shift to the defendant the entire burden of establishing his innocence. The formerly time-honored, but now not-greatly respected, rule of law which requires thе prosecution to prove beyond a reasonable doubt every essential element of the crime of the commission of which the defendant is charged, would appear to have been given a construction which would seem to be wholly at variance with the plain language of the ordinary rule and completely out of harmony with ancient judicial precedents. It is but a short step backward to a former procedure which permitted prosecution on mere hearsay information, and оn which, in the absence of the most positive affirmative proof of innocence, the accusation itself was sufficient to sustain a judgment of conviction. To my mind, the trend of judicial utterance is too much toward the abrogation of many of those cоnstitutional principles which affect human rights and which were most dearly obtained. With the destruction of the doctrine of “burden of proof on the prosecution”, no innocent man will be safe; but personal liberty will again become a prized, if not an uncommоn, condition or attribute to the citizen of the republic.
Dissenting Opinion
I dissent. Assuming (although it is a doubtful assumption) that the “presumptive evidence” rule stated in section 476a of the Penal Code by its terms extends to the foot of insufficiency of funds or credit, I think that this legislative attempt to create such evidence by presumption is unconstitutional and void, because it permits the state to deprive a person of liberty without due process of law. It destroys the presumption of innocence, without any foundation of legal evidence tending to overcome the presumption of innocence. The notarial certificates, showing presentation, nonpayment, protest and notice of protest, do not furnish evidence of any facts justifying the bank’s refusal to pay. They do say that the “reаson given” was in two instances, “no account”; in another, “certification forged”; in another, “no account, certification forgery”. And in two others, there is no statement at all of the reason given for refusing to pay. Perhaps it should be conceded that the return of the checks unpaid, and their production in evidence with the attached notarial certificates, may lawfully be used to raise the presumption that the checks were presented for payment and that .payment was refused; and that, as to those facts, the provisions of section 476a are valid. (Code Civ. Proc., sec. 1875, subd. 7, and sec. 1963, subd. 15.) But the mere fact that a bank has refused to pay a check, is not in its nature different from the fact that any other person to whom a demand has been prеsented has refused to comply with the demand. He may, or he may not, owe the amount claimed. To prove that the defendant in this action did not have any funds or credit sufficient to meet his checks, it was necessary to produce evidence, legal еvidence, tending to prove the fact. It is his right, that he shall have the opportunity to meet, confront and cross-examine any witness by whom it is sought to prove an essential fact of that kind.
In the instant ease, there is no relation between the facts shown by the notаrial certificates (with respect to the reasons given to justify refusal to pay the checks), and the further facts sought to be proved, such that on any reasonable theory the one can be inferred from the other. As applied to this question of fact, the so-called presumption is, I venture to say, an arbitrary deprivation of fundamental right.
*307 A petition for a rehearing of this cause was denied by the District Court of Appeal on May 18, 1932, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 2, 1932.