People v. Brown

CURTIS, J.

In this action the defendant was convicted, under section 476 of the Penal Code, of making, uttering, publishing, and passing a fictitious check. The information contained two counts. In count one the defendant was accused, under section 470 of the Penal Code, of the crime of forgery. And in count two, under section 476, of the crime of making, etc., a fictitious check. The check, as set out in full in each count of the information, purported to be signed by “J. Burke and Co.” In the body of the information, however, and in each count thereof the check was described and referred to as a check “purporting upon its face to be signed by a certain person and individual named J. Burke.” The check, when introduced in evidence, had the name of “J. Burke and Co.,” signed thereto. After the close of the testimony of the people the district attorney asked leave to amend the information so that the same should read “J. Burke and Co.” instead of “J. Burke.” Count one of the information was amended by substituting the words “J. Burke

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Co.” for the words “J. Burke.” No amendment, however, was made to count two of the information. The defendant was convicted under count two, and thereafter, upon motion of the district attorney, count one of the information was dismissed.

The first point made by appellant on his appeal is that there is a material variance between the allegations of the information and the evidence introduced in support thereof, in that, while there was testimony to the effect that

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there was no such person or association of persons as “J. Burke & Co.,” there was no evidence that there was no such person as “J. Burke” in existence. It is true, as-we gather from the record before us, the case was tried upon the theory that the fictitious check purported to be the check of “J. Burke

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Co.,” and not that of “J. Burke.” By an apparent oversight, however, of both court and counsel count two of the information was not amended. The trial of the case proceeded upon the theory that it had been. The evidence of the officer of the bank was that he had searched the records of the bank upon which the check had been drawn and found no such account as “J. Burke & Co.”