228 P. 367 | Cal. Ct. App. | 1924
The defendant was convicted of issuing a check in violation of section
[1] The attorney-general has made a motion to dismiss the appeal upon the ground that the defendant failed to comply with the provisions of section 1247 of the Penal Code.
In so far as it is material to a consideration of the motion, that section reads as follows: "Upon an appeal being taken from any judgment or order of the Superior Court, to the Supreme' Court, or to a District Court of Appeal, in any criminal action or proceeding where such appeal is allowed by law, the defendant, or the district attorney when the people appeal, must, within five days, file with the clerk and present an application to the trial court, stating in general terms the grounds of the appeal and the points upon which appellant relies, and designate what portions of the phonographic reporter's notes it will be necessary to have transcribed to fairly present the points relied upon. If such application is not filed within said time, the appeal is wholly ineffectual and shall be deemed dismissed and the judgment or order may be enforced as if no appeal had been taken."
It is claimed in support of the motion that the application made by the defendant failed to state the "points" relied upon. The record discloses that defendant's application, filed *760 in pursuance of said section, states: "and said defendant hereby fixes as ground for his appeal, the following." There is then set forth in general terms eight specifications of appeal and a request to the court for a transcript of all of the testimony offered and received, also all objections and exceptions, and all matters to which the same relate, and a further statement that all of the same is necessary "to fairly present the points relied on as aforesaid."
This question was before the court in People v. Preciado,
The foregoing language applies with equal force to the motion in this cause. The motion to dismiss the appeal is therefore denied.
The principal point relied upon by the defendant for a reversal of the judgment and order is that the proof fails to show an intent to defraud.
[2] The evidence upon which this contention is based, stated in the light most favorable to the prosecution, is that at the time of the making and delivery of the check defendant stated to the payee that he did not have sufficient funds in the bank to meet the check, but would have on or about the first of September, and the further fact that he did not keep such promise and the amount of the check has never been paid.
Section
So far as we are advised, the question here presented has never been decided by either the appellate or supreme court of this state, but in People v. Bercovitz,
In People v. Wilbur,
In State v. Miller,
In Words and Phrases (Second Series), volume 1, page 1273, it is said: "As defined by lexicographers, the word 'defraud' means to deprive of right, either by procuring something by deception or artifice, or by appropriating something wrongfully."
In the case at bar, the defendant having, at the time of the delivery of the check to the payee, made known to him that he had no funds in the bank to meet the check, there was no deception. And the mere fact that he failed to keep the promise does not, in our opinion, constitute any evidence that at the time of the transaction the check was issued with intent to defraud. There being an entire lack of evidence upon a material element of the offense, it follows that the judgment and order must be reversed, and it is so ordered, and the cause remanded.
Finch, P. J., and Plummer, J., concurred.