People v. Hellman

PEEK, J.

Defendant appeals from a judgment of conviction of the crime of forgery (Pen. Code, § 470). The record shows that shortly after 8 o ’clock on the evening of December 23, 1959, defendant entered the men’s clothing department of the J. C. Penney Company in Sacramento. He picked out at random several items of merchandise of the value of approximately $60 and presented them to David Lenz, a clerk, together with a check in the sum of $145.42. The check was drawn to the order of Donald Heilman on a form showing the name of ‘ ‘ California Advance Reports, ’ ’ 2920 Jay Street, Sacramento, and signed by Robert B. Fulton as maker. Defendant endorsed the check in the presence of Lenz and presented a driver’s license as identification. He was informed by Lenz that before the check could be cashed it would be necessary to obtain authorization therefor. Lenz was unsuccessful in his attempt to contact either California Advance Reports or Fulton. He then called the business office of the Penney store and spoke to a Mr. Dougherty, who was in charge of such matters and who was a personal friend of Fulton. Following this conversation with Dougherty, Lenz assumed the check was satisfactory and returned to the clothing department only to find that the defendant had gone. The check was then turned over to Dougherty.

Fulton, when called as a witness for the prosecution, testified that the handwriting on the check was not his and that he had given no one permission to sign his name. He also testified that Heilman had been in his shop several days before the incident and had discussed a possible printing job. He further testified that on the evening of December 23, and prior to the time defendant attempted to pass the check, his shop had been broken into and several checks were missing. A detective with the Sacramento Police Department testified that defendant admitted that he had been in Penney’s and had attempted to pass the check. The defendant, however, refused to tell the officer where he had obtained the check. No testimony was offered on behalf of the defendant.

Defendant’s first contention is that the evidence was insufficient and in support thereof argues that there was no evidence to show that the check was attempted to be passed with intent to defraud any person. “ ‘To constitute forgery by uttering or passing a forged instrument as defined in section

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