259 P. 750 | Cal. | 1927
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *161 Defendant was charged by information containing a number of separate counts, with the making, forging, altering, and counterfeiting of certain checks and contracts. The jury found him guilty of the crime of forgery and from a judgment entered upon that verdict and from an order denying his motion for a new trial he has appealed.
The outstanding facts appearing in the record are that the defendant was a real estate salesman in Los Angeles, California, and was attempting to sell property owned or controlled by persons doing business under the name of Clear Lake Beach Company. He handed to said company three purported contracts of sale of lots in its subdivision. These contracts were signed, respectively, by Warburton, McLendon, and Martin, as purchasers, and by the defendant, as agent of the Clear Lake Beach Company, and each was accompanied *162 by a check of the supposed purchaser for the first payment upon the land. Upon turning these contracts and checks over to his company, the defendant collected commissions upon two of them, amounting to $155. Later, all the checks were returned by the banks upon which they were drawn, marked "No Account," and the purported purchasers could not be located at the addresses given or elsewhere.
[1] The first contention of the appellant is that as the contracts in question purported to be contracts for the sale of land in an unrecorded tract, and, therefore, were not enforceable at law, there could be no crime of forgery with reference to unenforceable obligations. This contention is disposed of by the case of People v. Munroe,
[2] It is also contended that there is a fatal variance between the pleading and proof. Defendant was tried upon six counts of the information. These counts charged, separately, the making, forging, altering, counterfeiting, uttering, publishing, and passing of the three different checks and their corresponding contracts. Appellant's contention is that there were only three separate transactions; that each check was connected with a contract and the two were one inseparable transaction, and that, at most, the defendant could only be charged with three offenses and not with six. The form of the pleading is supported by the authority of People v. Frank,
The basis of appellant's objection to the admission of the forged contracts and checks in evidence, i.e., that the contracts were void and not the subject of forgery, has been discussed hereinbefore.
[5] It is also vigorously contended that the prosecution made no claim that defendant had actually written the signatures upon any of the instruments, and, therefore, the verdict and judgment are improper. This contention is made because of certain language used by the district attorney in presenting his case to the jury. In reviewing the evidence, the district attorney correctly stated that Mr. Carlson, the handwriting expert called by the prosecution, had been unwilling to state positively that the handwriting upon the three checks was the handwriting shown by the exemplars of the defendant's handwriting, but that he had been of the positive opinion that the three checks were *164 signed by the same person. The district attorney called attention to the fact that if the three checks were signed by the same hand, then it was apparent that defendant had not made bonafide sales of the three lots, and that the prosecution did not adopt the theory that defendant actually wrote the forged signatures, but that it was claimed by the prosecution that somebody, at the instigation of Gayle and with his knowledge and consent and acting upon his advice, wrote the checks, and that, thereafter, defendant took them to the company and received his commissions, and that it was all done as a part of defendant's definite scheme and plan. In accordance with this theory of the case, we must presume the jury reached its verdict, for the trial court gave an instruction to the effect that if the jury believed from the evidence that the defendant caused or procured to be signed the name of another person as alleged in the information, or aided, abetted, encouraged, or assisted another to sign the name of said person thereto, knowing he had no authority so to do, they should find the defendant guilty.
[6] This instruction stated the law, for all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are punishable as principals. (Sec. 971, Pen. Code.) [7] Whether the signatures in question were forgeries of names of existing persons or whether they were names of fictitious persons is immaterial under our present law. (People v. Whittaker,
[8] The only other matter that requires discussion upon this appeal is the assignment as prejudicial error of a remark made by the district attorney in his closing address to the jury. Defendant had called witnesses who testified that his reputation for truth, honesty, and integrity was good. Upon cross-examination, they were asked if they had heard that defendant had been arrested for petit larceny and had served a sentence in jail as a result thereof. Some of them answered in the affirmative. In commenting upon the testimony of these witnesses, the district attorney remarked to the jury that defendant's reputation was good, although he had served a sentence of thirty days in jail. *165 Objection was immediately made and the district attorney modified his remark by stating that he was merely making the remark in connection with defendant's reputation. The trial court then and there instructed the jury that the remark was not evidence of the fact itself. As restricted by the district attorney and by the trial court, the statement was unobjectionable. It was proper to ask the witnesses who had testified to the good reputation of defendant whether or not they entertained their opinions after having heard that defendant had been confined in jail for petit larceny and when it appeared from their replies that they had heard of the incident mentioned and, nevertheless, thought defendant's reputation was good, it was proper for the district attorney to remark upon the incongruity of the testimony.
No further discussion of the points raised upon appeal is necessary. No substantial or prejudicial error appears in the record and the guilt of the defendant appears therefrom beyond a reasonable doubt.
The judgment and order appealed from are affirmed.
Preston, J., Richards, J., Shenk, J., Waste, C.J., Curtis, J., and Seawell, J., concurred.
