241 P. 279 | Cal. Ct. App. | 1925
An information was filed in the superior court in and for the county of Alameda charging appellant J.W. Roche with having violated section
The facts as shown by the evidence adduced by the prosecution were that appellant on December 1, 1924, in the county of Alameda, indorsed and delivered to one Wong Loy, a Chinese restaurant-keeper, an instrument in form a check dated on that day, purporting to have been drawn by one J.C. Bauwer on the Seventh Street branch of the Oakland Bank of Savings, for the sum of $49.65, made payable to the order of L.C. Bailey, representing it to be "a good check," and requesting payment to appellant of the amount thereof. The check, though not indorsed by the payee named therein, was accepted by the restaurant-keeper who, not having at the restaurant sufficient money to pay the entire amount, paid to appellant the sum of $10, it being agreed that the balance should be paid on the following day. Thereafter inquiry was made at the banking-house of the drawee named, and the fact ascertained, as testified by the assistant manager of the bank and the restaurant-keeper, that the bank had no account with J.C. Bauwer. The restaurant-keeper thereupon visited appellant at his place of residence, which had been noted by appellant on the back of the check at the time of the indorsement, and demanded repayment of the sum advanced. Appellant agreed to repay when he could procure the sum necessary, but subsequently on the same day, in response to demands of the restaurant-keeper, ordered him from the premises with threats of bodily harm. According to the testimony of a police officer appellant stated, following his arrest, that the check had been given to him by a friend residing in the city of Oakland (the name of the person referred to does not appear from the record), and stated, as testified by the officer, that the person named had a telephone. The officer further testified that the name given could not be found in the telephone directory of the city of Oakland, and that appellant stated further that the transaction in the restaurant resulted from the fact that he was then under the influence of intoxicants. It was further testified that search had been made in the city of Oakland and neighboring cities for a person bearing the name of the drawer appearing on the check but without success. According to the testimony of appellant the check was not written by him but was indorsed and delivered as security for the payment of the sum advanced by the restaurant-keeper and which *559 sum he agreed and intended to repay on the following day, no denial being otherwise made of the facts testified by the witnesses for the prosecution.
[1] The essence of the offense charged in the information was the passing with intent to defraud another of a fictitious check purporting to be a check for the payment of the money of an individual, when in fact there was no such individual in existence, knowing the check to be fictitious (sec.
[3] The verdict was supported by the evidence and the judgment is therefore affirmed.
Tyler, P.J., and Knight, J., concurred. *560