People v. Choate

BARNARD, P. J.

The appellant was charged in two counts of an information with violations of section 476 of the Penal Code, and in a third count with violating section 476a of that code. In Count 1 he was charged with uttering and passing a fictitious check on April 8, 1957, purporting to

[783]

be signed by one Walter H. Scott, when he knew that there was no such person in existence and knew that this check was fictitious. In Count 2 he was in like manner charged with uttering and passing on April 9, 1957, another fictitious check which was purportedly signed by Walter H. Scott. In Count 3, he was charged with uttering and delivering on or about February 15, 1957, two checks drawn by one Eugene Montigo on a certain bank knowing that Montigo did not have sufficient funds in or credit with the said bank for the payment of said checks. A jury found him guilty on all three counts, and he has appealed from the judgment sentencing him to prison.

The evidence is amply sufficient to sustain the conviction on all three counts. The appellant cashed all of the checks involved therein at stores or places of business, and in most instances received both merchandise and a balance in cash. He claimed to have sold to this man Scott a membership in two different country clubs and that he received the checks involved in the first two counts in payment therefor. There was evidence that he was not working for these clubs at the time in question, that he never turned over any such memberships to the clubs, and that no such Scott had ever lived in that area. His explanation of these transactions was far from satisfactory, and there was evidence fully justifying the inference that he knew that these checks were fictitious. With respect to Count 3 it appears that the appellant sold two articles to Montigo; that Montigo told him that he had no checking account in any bank

•

that Montigo signed the checks on appellant’s statement and agreement that he would hold the cheeks for two or three months while he went on a trip to Texas, and that on his return he would return the checks to Montigo for the amounts named on their face; and that the appellant cashed one of these checks the same day he received it and the other on February 26, 1957.