People v. Silverman

WOOD, J.

Defendant was convicted at a trial by the court without a jury of the crime of issuing a check without sufficient funds. Proceedings were suspended and he was placed on probation on November 27, 1934, for a period of five years. Probation was revoked on July 19, 1938, and defendant was

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sentenced to the state penitentiary for the term prescribed by law. From this judgment he prosecutes this appeal.

Defendant contends that the evidence is insufficient to sustain the conviction. From the evidence introduced by the prosecution it appears that defendant was on and before October 28, 1933, staying at the Ambassador Hotel in Los Angeles and had incurred a large bill at the hotel. On the date mentioned he presented a check for the sum of $4,944.15 and received from the cashier of the hotel the sum of $1500 in cash, the difference being applied on defendant’s bill at the hotel. The check, drawn on National Newark & Essex Bank of Newark, New Jersey, in favor of the Ambassador Hotel was signed by the defendant. On the printed check form after the words, Name of bank, appears in ink the name of the bank on which the check was drawn. Under the words, Name of bank, appears the printed word, Branch, and after the word, Branch, appears in parenthesis and in ink the words, Peter Baida. The check was forwarded to the payee bank by one of the Los Angeles banks and was returned marked “no account either party”. The deposition of Emil Peter Barbata was received in evidence in which it appears that the deponent was a teller at the payee bank named in the check. He testified that no arrangement for credit had been made by defendant with the payee bank and that defendant did not have sufficient funds or credit with the bank to cover the amount of the cheek; that there was no account in the name of the defendant at the bank. The deponent further testified that a brother of the defendant had left with him personally sufficient funds to cover the amount of the check. These funds were later exhausted.

We are satisfied that the evidence is sufficient to sustain the conviction. Defendant unquestionably wrote a check drawn on a bank in which he had no funds or credit and received therefor cash from the hotel. Defendant argues that since he wrote the word, draft, on one corner of the instrument and inserted the words, Peter Baida, in the space designated for the branch of the bank, the instrument must be considered to be a draft and that it was not presented to the drawee. It is of little consequence whether the instrument be called a draft or a check for the code section covers both checks and drafts. The check was drawn on the bank and not