People v. Wilkins

California Court of Appeal Jun 23, 1924 No. Crim. No. 787.Published

Before: Burroughs

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Holding. The court held that a conviction for issuing a check with intent to defraud under Penal Code section 476a cannot be sustained when the defendant truthfully informs the payee at the time of delivery that there are insufficient funds to cover the check.

Issues

Whether the defendant's application for appeal sufficiently stated the grounds and points relied upon under Penal Code section 1247.
Whether the evidence was sufficient to prove the element of intent to defraud under Penal Code section 476a when the payee was informed of the lack of funds.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“By stating ‘in general terms the grounds,’ we think the defendant complied with the statute sufficiently to entitle his appeal to be heard.”

“In the case at bar, the defendant having, at the time of the delivery of the check to the payee, made known to him that he had no funds in the bank to meet the cheek, there was no deception.”

“There being an entire lack of evidence upon a material element of the offense, it follows that the judgment and order must be reversed”

BURROUGHS, J.,

pro tem.

The defendant was convicted of issuing a check in violation of section 476a of the Penal Code and appeals from the judgment and an order denying him a new trial.

The attorney-general has made a motion

dismiss the appeal upon the ground that the defendant failed to comply with the provisions of section 1247 of the Penal Code.

In so far as it is material to a consideration of the motion, that section reads as follows: “Upon an appeal being taken from any judgment or order of the Superior Court, to the Supreme Court, or to a District Court of Appeal, in any criminal action or proceeding where such appeal is allowed by law, the defendant, or the district attorney when the people appeal, must, within five days, file with the clerk and present an application to the trial court, stating in general terms' the grounds of the appeal and the points upon which appellant relies, and designate what portions of the phonographic reporter’s notes it will 'be necessary to have transcribed to fairly present the points relied upon. If such application is not filed within said time, the appeal is wholly ineffectual and shall be deemed dismissed and the judgment or order may be enforced as if no appeal had been taken.”

It is claimed in support of the motion that the application made by the defendant failed to state the “points” relied upon. The record discloses that defendant’s application, filed

[760]

in pursuance of said section, states: “and said defendant hereby fixes as ground for his appeal, the following.” There is then set forth in general terms eight specifications of appeal and a request to the court for a transcript of all of the testimony offered and received, also all objections and exceptions, and all matters to which the same relate, and a further statement that all of the same is necessary “to fairly present the points relied on as aforesaid.”

This question was before the court in

People

People v. Wilkins

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BURROUGHS, J.,

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