People v. Tuttle

[884]

COUGHLIN, J.

Defendant forged the signature of the payor on at least 10 cheeks; cashed them; received $652.80 from the persons cashing such; and was convicted of eight counts of forgery in connection therewith. Upon his arrest the police removed from his person $726.56, and took from his possession items of personal property consisting of cartons of cigarettes, 50 bottles of 7-UP and several bottles of various types of liquor. At his trial on the forgery charges the court admitted in evidence as exhibits, upon offer by the prosecution, some of the property, including money, taken from defendant at the time of his arrest. That part thereof not introduced in evidence was retained by the police. After his conviction became final he moved the court to order the return to him of all of the property aforesaid. His motion was denied. He appeals.

The People moved to dismiss the appeal upon the ground the order denying defendant’s motion is not appeal-able. He replies that the order comes within the provisions of subdivision 3, section 1237 of the Penal Code which permits him to appeal from “any order made after judgment, affecting the substantial rights of the party. ’ ’

That part of defendant’s motion directed to the return of the property admitted in evidence as an exhibit was made pursuant to section 1418 of the Penal Code which provides in part: “The court

may,

on application of the party entitled thereto, or an agent designated in writing by the owner, order all such exhibits, . . . , as may be released from the custody of the court without prejudice to the state, delivered to such party any time after the final determination of the action or proceeding.” (Italics ours.) By express terms this provision of the statute is permissive in nature rather than mandatory; authorizes the court, in its discretion, to release exhibits; and does not confer upon the party entitled thereto a. right to obtain their release. Other provisions of the statute authorize the court to dispose of such exhibits when the “party entitled” to them is unknown. Considered as a whole, the statute is merely a housekeeping measure authorizing 'the court to dispose of exhibits in its custody. Indicative of the discretionary nature of the statute is the contrast between Penal Code section 1418, which provides the court