209 P. 1027 | Cal. Ct. App. | 1922
Appellant was convicted of the crime denounced by section
Upon this appeal two assignments of error were originally made. First, that the testimony relating to the so-called Central National Bank transaction occurring on October 31st to November 2, 1921, was improperly admitted; second, that the trial court erred in refusing appellant's motion for a new trial on the ground of newly discovered evidence.
[1] As to the first, the prosecution was conducted upon the theory that the appellant had entered upon a common plan or scheme of defrauding dealers in bonds and securities by the issuing of fictitious checks either signed by him with a fictitious name or drawn by him upon banks in which insufficient funds were deposited. Under this theory the crime committed in the Central Bank transaction — the uttering of a check upon a bank with insufficient funds — is not so dissimilar to the crime charged in the information as to render evidence of the former inadmissible, even though such acts are specially defined in different sections of the Penal Code as constituting distinct offenses. In each case the plan to defraud was the same and the same method of using a fictitious name as the drawer of the check was used. *85 In any event, the appellant suffered no prejudice from the admission of this evidence. Testimony had been given of the three transactions in Los Angeles without objection.
The motion for a new trial was based upon newly discovered evidence which would have been merely cumulative to that already presented. The trial court was called upon to determine whether the testimony was such as would justify the granting of the motion. We find no error in the court's determination of the question.
[2] At the oral argument the objection was made for the first time that the verdict returned was not in harmony with the information. The point is that the appellant was charged with a violation of section
The judgment and order denying a new trial are affirmed.
Sturtevant, J., and Langdon, P. J., concurred. *86
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 6, 1922.
All the Justices present concurred.
Richards, J., pro tem., was acting.