228 P. 376 | Cal. Ct. App. | 1924
The appellant herein appeals from a judgment based upon an information consisting of three counts, each of which charged him and one Val Amthor with the crime *9
of forgery, under section
There is no evidence in the record that either of the payees named in the checks in fact existed, and a witness for the people testified that he had been in business at Los Angeles for a period of fourteen years but had never heard of C. R. McPhearson or of a company bearing that name, and that he had been unable to find either of them by a search of the city and telephone directories.
This testimony was objected to on the grounds that it was incompetent, irrelevant, and immaterial and that such evidence would be admissible only upon a charge preferred against one "who makes, passes, utters, or publishes, with intention to defraud any other person, or who, with the like intention, attempts to pass, utter, or publish, . . . any fictitious bill, note, or check, purporting to be the bill, note, or check, . . . of some bank, corporation, copartnership, or individual, when, in fact, there is no such bank, corporation, copartnership, or individual in existence, knowing the bill, note, check, or instrument in writing to be fictitious," as provided by section
It is conceded by counsel for the prosecution, and, in fact, he asserts that the evidence shows, that the names to whom the checks were made payable were believed to be fictitious, and they assert that the defendant knew that no such person or firm existed. In support of this theory J. F. McPherson was called as a witness for the people and testified that he was an electrical contractor, but that he was not "C. R. McPhearson," and that he did not know of a person or company *10 bearing the name appearing upon the checks in question.
This latter evidence was also objected to upon the usual grounds and, specifically, that the initials were different, and that the name of the witness was unlike "McPhearson," both in spelling and in sound. The respondent argues that the prosecution was confronted with the difficulty of proving that the defendant did not sign the indorsement on the check with the authority of some unknown person, and that McPherson was called as a witness because he was the only person having a name resembling that of the fictitious payee, and for the purpose of proving that he did not authorize the indorsement, "and for the further purpose of conclusively proving that the payee named in the check was a fictitious person, firm or corporation."
Section
[1] The evidence introduced by the people, which is not contradicted, was to the effect that R. E. Dusenberry, who issued and signed the checks set forth in the information, was the sole owner and proprietor of the Sound Construction Company, by whom appellant and Amthor were employed in connection with electrical work; that the defendant Whitaker obtained the checks from E. D. Lundberg, secretary of the Sound Construction Company, who had them signed by Dusenberry, upon representations that they were for purchases of electrical supplies from C. R. McPhearson Electrical Company. Dusenberry later discovered that no such supplies were purchased, and when appellant was confronted with this fact he stated that defendant Amthor was the McPhearson Electrical Company, but that Amthor received none of the money for said checks; that he, appellant, obtained and cashed them to settle another forgery charge. Defendant Amthor testified that he indorsed one of the *11
checks "C. R. McPhearson Elec. Co. — C. R. McPhearson" at Whitaker's request, although he had never heard of such a firm or person, and that he received no money therefrom, but that he saw Whitaker cash the check at the bank. This was a sufficient showing of the fictitious character of the checks. (People v.Brown,
[2] Appellant offered no evidence, and conceding, for purposes of the appeal without admitting, the truth of the foregoing as facts, he contends that upon the evidence adduced he should have been charged and tried under section
This claim may have been tenable prior to 1905, and under the provisions of the Penal Code as they were when People v.Elliott,
A petition to have that case heard by the supreme court was denied. Hence it is the law of the instant case as fully *12
as though determined by the supreme court itself. (Bridges v. Fisk,
[3] Appellant also insists that it was error on the part of the trial court to permit witnesses, over his objection, to testify that he stated to them that he procured and indorsed the three checks in controversy for the purpose of obtaining money to settle another forgery charge, because it constituted evidence of another offense. However, such statement was but a portion of the conversation related by the witnesses to have occurred between themselves and appellant, much of which was relevant and material as a part of the res gestae, and unless supplemented by other evidence it would have no tendency to prove other offenses. (People v. Jones, supra.) Moreover, it was a statement of the reason why he committed the forgeries with which he is charged here.
[4] The only remaining grounds upon which the appeal is based relate to the refusal to give certain requested instructions or to portions stricken from those given. The trial court repeated in almost exact words parts of the requested instructions and gave them all in effect. It has been repeatedly held that this is sufficient. (People v. Wolfgang,
Judgment and order denying motion for new trial affirmed.
Finlayson, P. J., and Works, J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal was denied by the supreme court on August 25, 1924. *13