People v. Burnett

GIBSON, C. J.

Defendant was charged by information with issuing two checks without sufficient funds in violation of section 476a of the Penal Code.

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The first count was on a check for $992.68 issued to Ed Lewis, and the second count was on a check for $1,480 issued to Joseph Bacorn. Both checks were drawn on the general account of William P. Osterhout, Inc., and were dated February 9, 1951. These and all other checks of the corporation were signed by Mrs. Winn, the treasurer, and were cosigned by defendant, who was the secretary. Defendant was convicted on the Lewis count, but the jury was unable to agree on a verdict as to the Bacorn count. Defendant appeals from the judgment and from an order denying his motion for new trial.

The principal question on this appeal is whether defendant was prejudiced by an erroneous instruction given by the trial court, and we must therefore examine the entire record

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in order to determine whether there has been a miscarriage of justice. (Const., art. VI, §4%.)

The corporation owed Lewis $1,292.68 for some work he had done for it, and two cheeks were issued to pay the debt. One was for $300 and was dated February 5, and the other, the check upon which the prosecution was based, was for $992.68 and was dated February 9. Both cheeks were signed by Mrs. Winn as treasurer and were cosigned by defendant as secretary. Mrs. Winn, who was not prosecuted, claimed that defendant ran the corporation. The evidence for defendant, however, was that Mrs. Winn handled its financial affairs and that she told Lewis and another witness that she owned the corporation. The testimony was also conflicting as to the time and circumstances of delivery of the checks to Lewis.

The evidence for the prosecution was that on February 5, Lewis came into the front office of the corporation and asked Mrs. Winn for payment of his bill. She took him to defendant’s office where he was told by defendant that there were not enough funds in the bank at that moment to pay the bill in full, but that he would give Lewis a check for $300 and pay the balance later in the week. Lewis agreed to accept the part payment, and a check, dated February 5, for $300 was issued to him and was duly paid. Later in the week, on February 9, he returned and asked Mrs. Winn for payment of the balance. She went to defendant’s office and told him that Lewis was requesting further payment on his bill. He directed Mrs. Winn to make out a check for $992.68 for the balance, stating to her that there were sufficient funds in the bank to cover it. She then delivered the check to Lewis.