People v. Brown

ADAMS, P. J.

In an information filed in the county of Sacramento on April 28, 1945, defendant was charged with a violation of section 476a of the Penal Code of California, to wit, that on May 22, 1944, in the county of Sacramento, he did wilfully, unlawfully and feloniously, with intent to defraud Capital Clothing Company, make, draw, utter and deliver to said Capital Clothing Company a check drawn on the Sacramento branch of the American Trust Company for $17.68, knowing at the time that he had not sufficient funds or any credit with said bank to meet said check.

On his arraignment he was represented by counsel appointed by the court, and entered a plea of not guilty. On the day set for trial, after a jury had been empaneled, defendant dismissed his counsel and elected to proceed in propria persona. He then moved to dismiss the information on the ground that he had been held to answer without reason or probable cause, and in support of his motion introduced in evidence a copy of the transcript of proceedings at the preliminary hearing. His motion was denied.

On trial of the cause the prosecution called as a witness an employee of Capital Clothing Company, who testified that defendant, on May 22, 1944, purchased merchandise from him and in payment therefor wrote out and gave to him the cheek described in the information, upon which check defendant gave a fictitious address; that the check was refused payment by the American Trust Company and returned to his company. An officer of the bank was then called who testified that he had charge of the bank’s records, operations and accounting, that he had examined such records to ascertain whether defendant had an account there during the month of May, 1944, and was unable to find any such account or that defendant had any arrangement for credit with the bank; that the check in evidence had been presented to the bank for payment and payment refused for the aforesaid reason.

For the'purpose of showing fraudulent intent on the part

[719]

of defendant, the prosecution called witnesses who testified that on May 22, 1944, defendant cashed a cheek with Sears, Roebuck & Company and one with Weinstock, Lubin & Co., both drawn on the Sacramento branch of the American Trust Company and tendered in payment for merchandise, for each of which cheeks defendant was given some cash; that said checks also bore a fictitious address, and were refused payment by the bank. The witness for said bank testified that payment of those checks was refused for the same reason that payment of the check charged in the information was refused. Defendant called as a witness the clerk of the court through whom he introduced, as an exemplar of his handwriting, his signature to his motion to dismiss the information. No other testimony was introduced by defendant. On return of the verdict of guilty found by the jury, defendant made a motion for a new trial on all statutory grounds, which motion was denied. Thereafter, the court sentenced defendant to confinement in the state prison for the term prescribed by law, said term to commence to run at the termination of terms of imprisonment which defendant was then serving.