Dеfendant was charged with and convicted of the crime of passing a check without having sufficient funds to his credit in the bank upon which it was drawn to pay the amount specified therein. The check was drawn to “cash or bearer” and was signed by the defendant. The jury returned a verdict of guilty, with a reсommendation for probation. The court ignored the recommendation and sentenced defendant to serve a term of three yeаrs in prison. He appeals from that judgment and from an order denying his motion for a new trial.
The information charged that the check was passed on or about the twelfth day of March, 1915, and as set out in the information the date line of the check read as follows: “Brawley, Cal. 3-2 1915.” The cheсk when offered in evidence corresponded in all respects with the copy set out in the information, except that the figure “1” apрeared in the date line, making the wording ‘'3-12 1915, ’ ’ instead of '‘3-2 1915. ’ ’ To the introduction of the check objection was made on the ground that there was a mаterial variance between the allegations and the evidence offered. The objection was overruled. It is now claimed that the court in making this ruling committed error prejudicial to the rights of the defendant. It may be' admitted that there was a variance, and the question presented is as to whether that variance was of such a nature as might permit of the appellant being prosecuted for a separate оffense based upon the check as it appeared in its form different from that described in the information. If the variance was of that kind, then it must bе said that a miscarriage of justice would result upon this conviction. The question to be answered is, as expressed in the decision in
People
v.
Terrill,
It appeared that the appellant had, prior to the date of the transaction referred to in the information, a bank account with the banking institution upon which the сheek described was drawn. The bank cashier," over the objection of appellant, was permitted to testify from a sheet made up frоm the books of the bank as to the state of the account, and the checks drawn against the credit which appellant had had at the bаnk were introduced in evidence. All of this testimony was objected to. It would be profitless to discuss the question of the competency of this evidеnce, in view of the requirement which the law imposes upon us that we shall examine the whole of the evidence to determine whether in a givеn case *546 there has been a miscarriage of justice. The defendant could, of course, have rested on the proof offered by the prosecution, but he did not do so, and proceeded to furnish testimony himself, and from this testimony it appears that he admitted the passing of this pаrticular check, and admitted that the time he drew it he had no funds on deposit at the bank, but claimed that the situation was explained to the complainant, and that the complainant understood that there would be funds at the bank to meet the cheek at a time some few days in the future. Dеfendant furnished this evidence by his own mouth, and if there was any error committed in the introduction of the bank’s statement or checks (it is not determined that thеre was such error), it was cured by the admissions made of those facts which the evidence objected to was offered to prove. There was evidence showing that, even at the date when defendant claimed that he had promised to have money in the bank to meet the check, the funds were not provided.
Appellant claims that the court erred in modifying an instruction offered by him which advised the jury that the intent of the defendаnt was ‘ ‘ the all-important element. ” The court changed the language and made the instruction read that the defendant’s intent was "an” important еlement. The modification, we think, was properly made; proof of intent was no more an important requisite than proof of the passing of the check itself. If the intent was an important element, as the court told the jury, it was, as the court properly said in another instruction which is objеcted to, "a mental process” to be gathered from evidence of words and acts of the party charged. The check describеd in the information, notwithstanding that it was drawn to "cash or bearer,” was such an instrument as is described in section 476 of the Penal Code. That section describes a bill, note, check, "or other instrument in writing for the payment of money.” The check issued by appellant was unmistakably an order for the pаyment of money, drawn by him as such and accepted with that understanding. If there was any defect of proof as to the presentment of the chеck, as is claimed by appellant, there would be no error in the conviction where it was shown, as appeared by the appellаnt’s own admission, that at the time of the making of the check and thereafter he had no credit at the bank upon which the check was drawn. Upоn the whole record, it cannot be said that any right of the defendant in the *547 conduct of his trial has been so infringed upon as to suggest the conclusion that there has been in this ease a miscarriage of justice.
The judgment and order are affirmed.
Conrey, P. J., and Shaw, J., concurred.