People v. Milligan

HOUSER, J.

Defendant appeals from a judgment of conviction of the crime inhibited by section 476 of the Penal Code, which makes punishable the fraudulent act of

[747]

making, passing, uttering, or publishing a fictitious bill, note, or check.

More particularly the information herein charged in substance that at a designated time and place defendant did wilfully, unlawfully, and feloniously utter, publish, and have in his possession a certain false and fictitious promissory note which he attempted to pass as true and genuine.

The first point urged by appellant as a reason for reversal of the judgment is that, over defendant’s objection and to the prejudice of defendant’s substantial rights in the premises, the trial court erred in permitting a witness to testify to the legal description of certain real property which was security for said alleged fictitious note.

It appears that, without objection, the witness testified that she was the owner of the real property in question, which, as described by the witness, was identical with the street and number thereon stated by defendant in the negotiations by him for the sale of the note, as representing the property upon which the mortgage was given to secure the note in question.

Appellant suggests that the testimony of the witness as to the legal description of the property which she claimed to own was secondary and consequently inadmissible. It would seem, however, that the ownership of the real property which purported to be the security for the alleged fictitious promissory note was but incidental to the issue in the ease. Defendant was accused, not with any crime affecting the execution of a mortgage, but with the offense of feloniously making and uttering a promissory note. The evidence being that the property upon which the mortgage was given to secure the alleged fictitious note was not owned by the person whose name was subscribed to the note, the description of the particular piece of property which was mortgaged as security for the note, while, perhaps not wholly immaterial, was nevertheless of comparative unimportance. Besides, it having been established that the witness was the owner of a definitely located piece of real property, we see no reason why a legal or other description thereof should not be given in evidence by any person in possession of the facts.