290 P. 1054 | Cal. Ct. App. | 1930
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *74 Leslie J. Eppstein and Alberta Eppstein, who are husband and wife, were informed against for issuing fictitious checks, a felony. Alberta Eppstein pleaded guilty and Leslie J. Eppstein not guilty, whereupon the cause was, as to him, set for trial. Before the trial date, however, the district attorney filed an amended information charging both husband and wife in three counts with the crime of issuing at Ontario in San Bernardino County three several fictitious checks and alleging as against the husband Leslie J. Eppstein, now appellant, the previous conviction of a felony. To each count of this amended information the appellant entered a plea of "not guilty," but according to statements in his counsel's briefs, admitted his previous conviction of the felony. As the wife had pleaded guilty to the information in its original form, a plea which she apparently repeated after it had been amended, appellant was alone brought to trial on the amended information. The jury having returned a verdict of guilty and his motion for a new trial having been denied, judgment was pronounced against him, from which, and an order denying his motion for new trial, he prosecutes the present appeal.
The evidence showed that each of the three checks involved ran in favor of Helen Westmore and purported to be signed by Bernard Holmes, Jr. One was drawn on the *75 Security First National Bank of Los Angeles, Main and Washington Branch, and the other two on the Bank of America of California, Tenth and Hope Branch in Los Angeles. Alberta Eppstein passed the three either all on January 24, 1930, or one or two on that day and one or two on the day following, by appearing at three several mercantile establishments in Ontario with a child eight or ten years old, apparently a little girl, making a trifling purchase, in each case tendering a check in payment, which she indorsed with the name Helen Westmore and receiving a balance in cash. In one case she is shown to have driven away with the said child in an automobile with a man not identified. A clerk in the establishment there involved took down her car number and a car of that number was proved to be registered in the name of appellant. It was shown that at neither the Main and Washington Street branch of the Security First National Bank of Los Angeles, nor at the First and Hope Street branch of the Bank of America of California in that city was any such person as Bernard Holmes, Jr., known, nor any account carried in that name. The further showing relied on by the People to connect appellant with the case consisted of the production of samples of his handwriting and the testimony of expert witnesses and also of a former employer familiar with his writing that the face of each of the checks referred to was in their opinion in appellant's hand. It was also shown that said Alberta Eppstein, earlier in the same month, had passed in Bakersfield and in Ventura numerous other checks appearing, according to the opinion of the same experts, to be in the same hand, and purporting to be signed by persons who were unknown and had no accounts at the banks on which they were drawn, and that on various occasions when such checks were passed by said Alberta Eppstein, she was accompanied by a little girl eight to ten years of age; also that during the period in question appellant and his wife lived at a certain address in Los Angeles and had a little girl of apparently that age, and that there were found there worn child's shoes identified as having been bought in Bakersfield with one of the fictitious checks there passed by Mrs. Eppstein.
[1] Appellant assigns as error various rulings of the trial court on the introduction of evidence. He insists in *76
the first place that all testimony about what Mrs. Eppstein said and did in passing the three checks specifically involved in the information ought, under section 1848 of the Code of Civil Procedure, to have been excluded on the theory that neither the declarations nor acts of another, especially when out of his presence, should be allowed to prejudice him. None of Mrs. Eppstein's statements testified to in terms implicated appellant or referred to him, nor are any of them relied on to establish the truth of what she said, the prosecution's point being rather that they were false. Plainly their admission did not violate the hearsay rule. Essentially her declarations were verbal acts and are inseparable parts of her conduct in inducing the merchants concerned to cash the checks. As the passing of these checks was of the essence of the crimes charged, Mrs. Eppstein's statements made in doing so were precisely a part of the res gestae within the rule laid down in People v. Edwards,
Complaint is also made that the prosecution was allowed to show the passing by Mrs. Eppstein of the various other checks not involved in the information on which appellant was being tried. In this we find no error. [2] The proof of other crimes, indeed, even though committed by the defendant on trial, is ordinarily inadmissible for the purpose of showing his guilt of the particular crime with which he is charged, and the prosecution has no right to offer such evidence for the mere purpose of prejudicing a jury against him. (People v. Glass,
[4] Objection is made that the proof of the other crimes, i.e., the passing by Mrs. Eppstein of the checks at Bakersfield and Ventura, was made before there was other proof in the record that she had passed the checks described in the information and, therefore, that it was made before proof had been made of thecorpora delictorum which the information charged; and appellant contends that the corpus delicti must be shown with respect to a crime charged in an information before proof of other crimes is in order. We know of no such rule. In People v. Frank,
Mr. King (Deputy District Attorney): "I think we have arrived at an agreement. Mr. Cossack (appellant's counsel) will waive the order in which the witnesses are put on, but *78 he reserves the privilege to make any objection that he desires as to the admissibility of their testimony."
Mr. Cossack: "Yes, I will do that."
The rule for which counsel contends, even if it were as he states, which in our opinion it is not, would have nothing to do with the admissibility of the evidence of other crimes if independent proof of the corpus delicti charged in the information did finally appear, but would have to do only with the time when such evidence of other crimes might be admitted, i.e., the right to insist that it should not be before the jury in advance of the completion of independent proof of the corpusdelicti. Even though appellant had had such a right, that was precisely what he waived.
[6] Appellant claims also that the court erred in refusing to allow his counsel to inquire of the manager of the Main and Washington branch of the Security First National Bank of Los Angeles, who was a witness for the prosecution and had testified to the absence of any account there in the name of Bernard Holmes, Jr., as to whether said bank had other branches, citingPeople v. Thal,
[7] Complaint is made that the court permitted evidence that Eppstein had at his home in Los Angeles a little girl of about the age of the one present with Mrs. Eppstein when the checks were passed. We are not able to perceive on what theory this evidence was objectionable or how it could tend, as claimed, to prejudice the jury against appellant. If not of great importance, it was at least admissible *79 as tending to corroborate the identification by the witnesses of Mrs. Eppstein as the one who had passed the checks.
[8] It is next claimed that the evidence is insufficient to sustain the verdict in that under section
[9] It is also objected that there is no evidence that the Security First National Bank of Los Angeles, on the Main and Washington Street branch of which the check described in the first count of the information was drawn, and one of the parties which appellant and his wife are charged, in uttering such check, to have intended to defraud, *80
was a corporation. If the point were of consequence it would only affect one of the two parties whom in that count he is charged with having intended to defraud, but the point is of no consequence. The information, besides stating that there was no such person as the purported signer of the check in existence, sufficiently shows that the institution in question was a bank, and that the check was uttered, published and passed with intent to defraud both that bank and a named individual, and so does the evidence. That is enough to bring the case within the requirements of section
[10] It is finally claimed that because in his opening statement the deputy district attorney said that the People proposed to show that appellant and his wife conspired in the preparation and passing of fictitious checks, therefore, the court erred in refusing to instruct the jury that a man and his wife, being in law one person, are incapable of conspiring with each other, citing People v. Richards,
The judgment and order denying a new trial are affirmed.
Cary, P.J., and Marks, J., concurred.