People v. Wilder

PEEK, J.

By an indictment, defendant was charged with four counts of violation of Penal Code, section 72 (presenting false claims). The jury found him guilty as charged. He now appeals from the judgment of conviction, whereby he was granted probation subject to certain stipulated conditions, and from the order denying his motion for a new trial.

Defendant makes four main contentions: (1) That the evidence was insufficient to support the verdict; (2) that evidence of a highly prejudicial nature was erroneously admitted by the trial court over his objection; (3) that the court erred in failing to give certain instructions to the jury; and (4) that the court erred in ordering an amendment to the indictment.

The first count of the indictment alleged that on January 15, 1954, the defendant, with intent to defraud the Pacific Fire District, knowingly presented, for allowance and payment, to the district, to the Board of Fire Commissioners thereof and to James IT. Hastings, Auditor of Sacramento County, a false and fraudulent payroll claim which defendant knew was false and fraudulent in that it included the names of two persons, M. James and L. Lotts, and alleged that each had performed services as a fireman in a certain amount, whereas in fact neither had performed any services for the district during the period covered by the payroll. Counts 2, 3 and 4 contained allegations identical with those in count one with the exception of the date of presentation and the amounts claimed, and alleged the crimes to have been committed on February 28, 1954; April 7, 1954; and April 30, 1954, respectively. At the commencement of the trial court’s

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instructions to the jury the first count of the indictment was amended to charge the commission of the crime alleged in that count on February 15, 1954, instead of January 15, 1954.

The record discloses that the defendant, at the time of the commission of the offenses charged in the indictment was the fire chief of the Pacific Fire District, Sacramento County. The district was governed by a board of three commissioners. As chief, defendant hired firemen, did all of the bookkeeping, prepared the payrolls and distributed the cheeks. During this period the district had an assistant chief, one full-time fireman and a number of volunteers. At the end of each of the months in question, appellant presented individually to at least two of the commissioners, for their signatures, a payroll listing the volunteer firemen who had performed services during the previous pay period. They were paid on the basis of the number of calls to which they had responded. Opposite the name of each fireman was the gross amount of pay to which he was entitled. One commissioner testified that when the payrolls in question were presented to him they did not contain the names of M. James and L. Lotts nor were they totaled. A second commissioner testified that no amounts appeared when he signed the payrolls. However, when they were subsequently presented to the county auditor, each payroll contained the names of M. James and L. Lotts, and the' signature of defendant. County warrants were drawn for the amounts appearing after the names of each of the persons listed on the payroll and these checks were mailed to defendant who usually distributed them at a meeting of the volunteer firemen, by first reading aloud the names appearing on the warrants and then giving them to the persons named. At none of the meetings in question was the name of M. James or L. Lotts read or mentioned. All of the district personnel testified that they knew of no persons by the names of M. James and L. Lotts who performed any services for the district.