People v. Bernstein

BARNARD, P. J.

The defendant was charged with violating section 476a of the Penal Code in that on January 19, 1948, he fraudulently issued a bad check to the Kona Inn in Palm Springs, and in that he issued two other bad cheeks on

[523]

January 17,1948, in payment for merchandise. A jury found him guilty on all three counts and he was sentenced to imprisonment in the county road camp. He appeals from the judgment and from the order denying his motion for new trial.

It is first contended that the evidence is insufficient to support the judgment. While it is freely admitted that the checks were issued at a time when his bank account was overdrawn, it is argued that the evidence fails to show that the appellant had knowledge of the status of his account or that he intended to defraud anyone by issuing these checks. It is argued that the issuance of these and other bad checks do not show an intent to defraud but that they “do show that he was merely following his usual practice of drawing upon his account whenever he so desired.”

The appellant was, or had been, in the business of buying and selling “surplus goods.” He opened an account with a Hollywood bank on September 29, 1947, with a deposit of $7,787. Substantial further deposits and large withdrawals were made during October and November. The account was overdrawn by six cents on December 1,1947. The only deposit thereafter made in this account was $500 placed therein by appellant’s attorney on December 5, 1947. Of this amount $450 was immediately applied by the bank in payment of a check previously given by the appellant to a Mr. Rubin. A number of small checks were issued and this account was again overdrawn by $1.07 on January 14, 1948. In addition, 15 checks drawn by the appellant between December 10 and January 14 were returned because of insufficient funds. Among the checks thus returned were one for $172.90 to the Colonial House, a hotel in Palm Springs; one for $100 to the Ambassador Hotel in Los Angeles; and one for $152.90 to the Mark Hopkins Hotel in San Francisco. There was also evidence that the appellant registered at the Clark Hotel in Los Angeles on January 8, 1948, stayed four days and left without paying his bill; that from January 19 to January 28, he stayed at the St. Paul Hotel in Los Angeles and left without paying his bill, leaving a small quantity of luggage; and that from January 31 to February 4, he stayed at the Alexandria Hotel in Los Angeles and left without paying his bill. Also, on February 5, he gave a cheek to the Southern Pacific for $38.47 for passage to San Francisco and on February 9 gave a similar check for his return passage, both of which checks were returned for lack of funds.