People v. Ekberg

BARNARD, P. J.

The defendant was charged with the crime of issuing a check without funds with intent to defraud. In a separate action he was charged with the crime of possession of a firearm capable of being concealed upon the person by one previously convicted of a felony. He pleaded not guilty and not guilty by reason of insanity in each action. At his request the actions were consolidated for trial and tried together. A jury found him guilty on both charges, and later the same jury found him sane at the time each of the offenses was committed. The defendant waived application for probation, and separate judgments were entered. While the defendant had been represented by counsel at the trial, he filed a notice of appeal in propria persona, this notice being filed only under the number of the cause involving the possession of

[615]

a firearm. He disclaims any intention to appeal on the insanity issue, but insists that he intended to appeal in both cases, and argues that since the causes were thus intertwined the appeal should be considered as having been taken with respect to both charges. Since the appeal was taken by the defendant personally, without the aid of- counsel, we prefer to follow that course.

The general facts relating to these cases are as follows. On the afternoon of February 14, 1949, the appellant entered Hancock's Flower Shop in San Diego, represented himself to be connected with the TWA Airlines, and ordered three orchid corsages saying they were for airline hostesses. He also placed a telegraph order for flowers to be delivered to his wife in Kansas City, giving her correct address. In payment therefor he wrote a check for $19.82 on a Los Angeles bank. He then stated that the address he had placed on this check was wrong and at his request Hancock tore up that check, and filled out another check on the same bank, with a different address. Both of these addresses were fictitious. The appellant signed the second check and left the store taking the three boxed orchids with him. Hancock saved the pieces of the first check. Having become suspicious, he phoned the Los Angeles bank and learned that the appellant had no account there, a fact which was conclusively established at the trial.

About 2 ¡30 a. m. on the morning of February 15, 1949, the appellant, while in a grill in San Diego, displayed a pistol in a manner which alarmed the cashier. She called the police and when they arrived they found a .380 Colt automatic pistol under the appellant’s belt and covered by his coat. At that time there was no clip in the gun or shell in the chamber. However, a clip for the gun was found in his pocket. The appellant told the officers that he had bought the gun a good many years ago.