People v. Wahrmund

MUSSELL, J.

Defendant appeals from an order denying his motion to vacate a judgment of conviction of a violation of 476a of the Penal Code.

Defendant was charged by an information with the crime of issuing checks without sufficient funds, in violation of section 476a of the Penal Code, a felony. He waived jury trial, was tried by the court and found guilty. The judgment was pronounced January 27, 1948, and the defendant, showing no legal cause why he should not have judgment pronounced against him, was committed to the state prison. No motion for a new trial was made and no appeal was taken.

On October 22, 1948, defendant filed this motion on the grounds (1) that the conviction was based on hearsay evidence and on the defendant’s prior record; (2) that there was no evidence of intent to defraud; (3) that the court disregarded the report of the probation officer; (4) that the court by its comments showed bias against defendant because of his prior record; (5) that the judgment is incomplete in that it does not specify the crime for which defendant was sentenced or the term of imprisonment. It is also stated that the motion is made to permit the trial court to correct errors made in connection with the conviction and sentence of defendant and to prevent a miscarriage of justice and violation of defendant’s constitutional rights. In support of his motion defendant filed his own affidavit substantially setting forth the grounds of the motion, and also filed an affidavit and letter

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from officers of the Millbrae, California, Branch of the Bank of America stating that since June 1, 1945, the defendant had a commercial account in that bank amounting to the sum of $69.15 and that an attachment was served against the account on that date. The motion was heard and denied by the court on November 1, 1948, and this appeal followed.

Verle LeRoy Loyd, a prosecution witness, testified at the trial of the action that he was a clerk in a grocery store in San Diego where wine and beer were sold; that on September 27, 1947, defendant came into the store and cashed the check described in the information; that the check was payable to “Cash” in the amount of $30, was drawn on the Bank of America National Trust & Savings Association, San Diego, California, and dated September 27, 1947; that he saw defendant write out the check at that time and obtain the $30 in cash; that defendant had been in the store about once a week for a period of six weeks in connection with placing orders for Ziegler beer but had not previously cashed checks and that nothing was said by defendant as to his not having an account at the Bank of America in San Diego or as to holding the check; that the check was returned from the bank marked “No Account”; that defendant left the store after the check was cashed and was not thereafter seen by the witness for four or five weeks when he paid the witness the sum of $30 on the day of his arrest. An assistant cashier of the Bank of America testified that there was no record of an account in the name of the defendant at the San Diego Branch of the bank.