People v. Murrie

[772]

FOX, P. J.

A jury having been waived, defendant was found guilty of a violation of section 470 of the Penal Code, forgery. He has appealed from the judgment and from the order denying his motion for a new trial.

Defendant’s sole contention is that the evidence is insufficient to prove the offense charged.

Viewed in the light most favorable to the successful party in the trial court

(People

v.

Caritativo,

46 Cal.2d 68, 70 [292 P.2d 513]), the following is a summary of the pertinent facts: On August 15, 1957, defendant purchased certain paints and related materials at the Hollywood Sinclair Paint Company store from salesman Gordon Ivey. The amount of the bill was $79.87. In payment defendant presented a check in the amount of $100 on the Bank of America, made out to himself as payee, and bearing the name and purporting to be signed by Nellie Thomsen as drawer. The back of the check bore the defendant’s endorsement. Defendant received the above mentioned merchandise and the difference in cash.

Nellie Thomsen testified that she did not sign the check or write any portion of it, nor did she give anyone permission to sign her name to it.

While in custody, defendant stated that he had endorsed and passed the check at the paint store. He claimed that he had received the cheek from one “Bruce” as repayment of a loan. He was unable, however, to recall Bruce’s last name or to tell the officers where they might be able to locate him. At the trial, defendant stated that one Bruce Gerber had owed him $100; that they had known each other for about six months, having become acquainted as a result of “shooting pool” together, but that he did not know where Gerber lived. He further testified that he and Gerber had loaned each other money on previous occasions. He stated that he had put pressure on Gerber to repay the loan, as he needed the money. According to defendant, Gerber told him that he would see Nellie Thomsen, who was in the hospital, that night and get the money from her. Defendant testified that the following day Gerber gave him the check in question, and told him that he had gotten it from Mrs. Thomsen. The check had the following statement written on its face: “advance on contract.” He further testified that on asking Gerber about this notation on the cheek Gerber said, “I had to tell her something to get the money from her; that this $100.00 was to start a paint job.” Defendant stated that he thought the check was proper and hence used it to pay for the materials that he purchased