200 P. 1054 | Cal. Ct. App. | 1921
The defendant was convicted of the crime of forgery and he has appealed from the judgment and an order denying him a new trial. The information on which he went to trial pleaded in one count (1) the forging, and (2) the uttering of a check purporting to be indorsed by the payee therein named, G. Cerruti. A trial was had and the jury brought in a general verdict of guilty as charged.
[1] In support of his appeal the defendant contends that the trial court erred in allowing evidence of the confession of the defendant because it had not been shown that the confession was voluntary. As to whether the confession was voluntary or otherwise, a great deal of time was taken up during the trial of the case in the examination of each witness who was present at the time of the confession. The interview in which the defendant confessed was a long one, covering four hours or more. During that time much conversation was had, but it does not appear that anything occurred which can be said was in the nature of a threat or a promise. We are not inclined to say that the evidence on those subjects was even conflicting, but conceding that it was, such is the broadest summary in favor of the defendant, and the conflict was for the trial court to determine and this court is bound by that determination. *47
For the purpose of showing that the forgery of the check described in the information was but a part of a larger plot and plan the prosecution introduced other forged checks. It was the contention of the prosecution that the defendant Calpestri, together with one Sindici and one Rinaudo, were co-workers in one department of one of the plants of the California Packing Corporation; that they had such charge of the time-books, checks, and payments as to enable them to manipulate the pay checks in such manner as to be able to cause the employer to pay certain checks under the belief that the payee was in its employment and that the proceeds of the forged checks were so obtained by the manipulators. If we call this a general plan and plot the evidence was admissible. (People v. Frank,
Much testimony of this kind was introduced before the prosecution called witnesses regarding the confession. The appellant calls to our attention the rule stated inPeople v. Compton,
[2] On the request of the prosecution the court gave two instructions as to the effect of evidence showing possession of, or obtaining money on, a forged instrument. The appellant contends that those two instructions were prejudicially erroneous. (People v. Mitchell,
"The court instructs the jury that where one is found in possession of a forged instrument and is endeavoring to obtain money or advances upon it, this raises the presumption that he either forged or consented to the forging of such instrument, and nothing else appearing, the person will be presumed to be guilty.
"The court instructs the jury that if you are satisfied beyond a reasonable doubt that the indorsement upon the check in this case (People's Exhibit 4), is a forgery, and that the defendant had it in his possession and obtained money from the Bank of Italy upon it, then this raises a presumption of guilt and unless the defendant has rebutted it, you will find a verdict of guilty." (Italics ours.) If there are any such presumptions in California the same must be printed somewhere in the codes or other statutes because section 1959 of the Code of Civil Procedure provides: "A presumption is a deduction which the law expressly directs to be made from particular facts." Conclusive *49
presumptions are enumerated in section 1962 of the Code of Civil Procedure. No one claims that the presumption recited in the above instructions fall within that section. Section 1963
of the Code of Civil Procedure enumerates the most of the disputable presumptions. It is a long section. Read it from the beginning to the end and one finds no such presumption as the one that is recited in the instructions. Search the codes and statutes and one fails to find such presumptions. In a long line of cases the supreme court of this state has uniformly pointed out the distinction between the word "presumption" and the word "inference." Many of those cases are collected inDavis v. Hearst,
The judgment of conviction and the order denying a new trial are both reversed.
Nourse, J., and Langdon, P. J., concurred. *50