People v. Thorp

MARKS, J.

Under an information filed by the district attorney of San Diego County on November 4, 1929, appellant was convicted of the crime of forgery alleged to have been committed by him on March 3, 1928. He was sentenced to confinement in the state penitentiary for the term prescribed by law.

Appellant complains of errors of the trial court in the admission and rejection of evidence, of instructions to the jury, and of misconduct of the district attorney during the trial, and relies upon them for a reversal of the judgment.

The alleged errors in rulings on the evidence occurred in connection with the identification and admission in evidence of a photograph which respondent urges was used for the purpose of assisting witnesses to identify the appellant. The picture was evidently taken in a criminal investigation bureau. The forged check was drawn on the First National Trust and Savings Bank of San Diego, in favor of the First National Bank Trust and Savings, in the sum of $151.13, and was used to purchase travelers’ checks of the American Express Company. A certain signature card, and another forged check were also involved. None of the bank employees could identify the appellant as the man connected with either transaction. Other than the testimony concerning the photograph, the only evidence connecting him with the forgery was that of a handwriting expert who testified for the People that admitted writings of the appellant and the writings on the checks and signature cards were written by one and the same person, and the

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testimony of a witness who was a lobby man at one of the banks who said that the appellant looked like the same man who had signed the signature card and deposited one of the forged checks in the bank.

The principal testimony in connection with the identification of the photograph occurred in the evidence of P. J. Slattery, a police officer of the city of San Diego. The transcript shows that the following occurred:

“Q. Now, did you make any investigation of the crime with which this defendant is charged? A. I did. Q. And what did that investigation consist of? A. Well, I interviewed the complaining witness, and he gave me a description of this man, of this special— Mr. Johnson: Just a moment, we object upon the ground that is incompetent, irrelevant and immaterial, calling for hearsay testimony. Mi’. Clark: He is not testifying to any hearsay. He is simply testifying that he was given a description. We are not going into what he said. The Court: Objection overruled. A. I was given a description of this defendant—I mean given a description of the man who is presumed to have passed this check at the First National Bank, and took this matter up with the American Railway Express Company in a letter. Mr. Johnson: Just a moment, now, we object to this upon the ground it is wholly incompetent, irrelevant and immaterial, and hearsay. The Court: Overruled— objection overruled. A. (Continuing) : And after writing them and explaining what our investigations were here with reference to this check, we received a photograph from the American Railway Express Company’s office at 609 West Seventh street, Los Angeles, and that photograph was taken to the complaining witness, Mr. Hadley, and Mr. Hadley identified the photograph as the man that passed the check. Mr. Johnson: Just a moment, now, we move to strike out the entire answer, upon the ground that it is incompetent, irrelevant and immaterial, and is the conclusion and opinion of the witness, and hearsay. The Court: Were you present when he identified the photograph? A. Yes, sir. The Court: Objection overruled. By Mr. Clark: Q. Now, did you show this photograph to anyone else? Mr. Johnson: I make the objection that it is wholly incompetent, irrelevant and immaterial. The Court: Objection overruled. A. On the same date the photograph was shown