People v. Kennedy

SHINN, P. J.—

Walter Kennedy was accused by information, in separate counts of four offenses of issuing checks without sufficient funds, namely, on October 28, 1960, a check for $25, on October 29, 1960, a check for $15, on October 29, 1960, a check for $25 and on October 30, 1960, a check for $20. In a jury trial in which he was represented by the public defender Kennedy was convicted and sentenced on all counts to state prison, the sentences to run concurrently. He appealed from the judgment in propria persona and filed what purported to be a brief. We inquired of the deputy public defender who represented defendant at the trial whether, in his opinion, there was ground for the appeal. Upon receipt of his reply we appointed the public defender as counsel on the appeal.

Upon the stand defendant admitted cashing the checks, claiming that one Payne, whom he met while both were on parole, had told him that he, Payne, had opened an account in their joint names with a deposit of $365; Payne then owed him $165; Payne had given him no signature card to sign, and he had signed none. All the checks were dishonored.

The question on the appeal is whether defendant was properly convicted of more than one offense. In each count of the information, except count I, it was alleged: ‘ ‘ The total amount of the checks, drafts and orders that the defendant is charged in the several counts of this pleading with making and uttering exceeds the sum of Fifty Dollars ($50.00).’’ The reason for this allegation was that the prosecution was under section 476a, subdivision (b) of the Penal Code which reads, in pertinent part: “(b) However, if the total amount of all such cheeks, drafts, or orders that the defendant is charged with and convicted of making, drawing, or uttering does not exceed fifty dollars ($50), the offense is punishable only by imprisonment in the county jail for not more than one year, ...”

Prior to the enactment of subdivision (b) in 1955, the issuance of a fictitious check in any amount was a felony under

[601]

section 476a of the code. By amendment of section 1425 of the code in 1957 jurisdiction of prosecutions under subdivision (b) was transferred to the justice courts.

While it is clear that the issuance of one or more checks, the total of which does not exceed $50, is a misdemeanor, triable in the justice court, and that the issuance of one check for more than $50, or several cheeks which add up to more than $50, is a felony, there is nothing in the applicable code sections which specifically answers the question whether the issuance of multiple cheeks, each for $50 or less, but which total more than $50, can constitute as many felonies as there are checks. The question is one which can only be answered by ascertaining the presumed intention of the Legislature in the enactment of the amendments of sections 476a and 1425.