People v. Burke

Opinion

CHRISTIAN, J.

Eugene Nealous Burke appeals from a judgment sentencing him to concurrent terms of imprisonment after a jury found him guilty of receiving stolen property (Pen. Code, § 496) and possession of a blank check with intent to defraud (Pen. Code, § 475).

On March 9, 1972, the Producers Cotton Oil Company in Fresno was burglarized; a check protector and many blank forms of bank drafts were stolen. A few months later two police informers went to appellant’s home and were shown a check protector and a bundle of blank drafts, which proved to be the ones which had been stolen from the Producers Cotton Oil Company. One of the informers told appellant he would “make out a couple”; appellant asked him to cash them and return with half of the proceeds. The informers left with the drafts and the check protector, and contacted the police.

The next day the informers returned with two partially completed drafts. One of the men carried a hidden transmitter, by means of which police officers recorded a lengthy conversation which incriminated appellant with respect to the stolen drafts and check protector.

Appellant contends that he should not have been convicted of violating Penal Code section 4751

1

he was charged with possession of a blank check, but the evidence was that the forms which he possessed were not

[711]

checks. The contention is expressed in terms of the court’s

jurisdiction

to convict appellant under Penal Code section 475. But because Penal Code section 475 does not punish possession of all instruments for the transfer of money there are two real questions: does the statute reach the forms possessed by appellant and, if so, was the information fatally defective in that it charged possession of a check while the forms possessed by appellant were not checks?

A check is defined as “a draft drawn on a bank and payable on demand; . . .” (Cal. U. Com. Code, § 3104, subd. (2)(b).) The instrument involved in this case is a draft. It states “Pay to the order of,” followed by a blank where the name of the payee is to be written; it contains spaces where the sum of money and the signature of the drawer are to be written.