People v. Hollander

PETERS, P. J.

The appellant, Herman Hollander, was convicted by a jury of three violations of section 476a of the Penal Code, that is, of issuing fictitious cheeks. He appeals from the judgment of conviction.

The evidence shows that on October 2, 1957, the appellant purchased various articles from a department store in San Francisco. He offered, in payment for these articles, three checks drawn on the Valley National Bank of Phoenix, Arizona. At various times that day the department store cashier cashed three cheeks for appellant, one for $27, one for $84 and one for $73. The department store employees became suspicious and the matter was referred to the police. Upon being questioned, appellant admitted to the officers that he had drawn the checks and that he had no account in the bank on which the checks were drawn. His explanation was that, several years prior to 1957, he had an account in the Phoenix bank and had some of its checks in his possession, and that he needed some articles of clothing and passed the checks to secure them. His only defense was that at some indefinite time in the future he intended to make the checks good.

At the trial defendant did not testify. The prosecution, after producing the evidence above summarized, introduced protests and notices of protest on all three checks. These documents show that a notary public in the State of Arizona presented the cheeks to the Valley National Bank in Phoenix for payment, and that payment was refused on the ground that the maker of the checks had no account in the bank. Appellant objected to the introduction of these notices of

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protest on the ground that they were not properly authenticated. The objections were overruled.

On this evidence the jury found appellant guilty on all three counts. The sole contention made on appeal is that the protests were erroneously admitted into evidence because not properly authenticated. Bach notice of protest bears the notary’s seal, but appellant urges that this was not sufficient authentication.

The point is without merit. Section 476a, subdivision (c) of the Penal Code provides that a notice of protest “shall be admissible as proof of presentation, nonpayment and protest and shall be presumptive evidence of knowledge of insufficiency of funds” in the bank on which the protested check is drawn. Section 8208 of the Government Code provides that: “The protest of a notary public, under his hand and official seal, of a bill of exchange or promissory note for nonacceptance or nonpayment, specifying: