People v. Bernard
Before: Hall
Synopsis
Criminal Law—Forgery—Fictitious Check—Code Amendment—In- • struction;—Under section 470 of the Penal Code, as amended in 1905, a defendant may be charged with the forgery of a check, notwithstanding the names of the maker and payee of the check were, both fictitious persons, and the court properly instructed the jury to that effect.
Id.—Code Definition of Forgery—Instruction—Applicability.—An instruction as to the code definition of the forgery,- under which the information was found, by reading section 470 of the Penal Code to the jury, is not erroneous, although some portions of the definition, as read, are inapplicable to the case made by the information, or the proofs.
Id.—Sufficiency of Evidence to Sustain Verdict — Absence of Prejudicial Error—Exemplars Indicating Forgery.—Where exemplars introduced, in connection with other evidence, sufficiently showed a case of forgery by the -defendant of the check in question, it is held that the evidence as a whole is sufficient to sustain the verdict of guilty o’f the offense charged, and that no prejudicial error appears in the record.
Id.—Sentence — Continuance of Time — Motion for New Trial— Sanction of Code—Jurisdiction not Lost.—The court did not lose jurisdiction to pronounce sentence, because it was not pronounced within five days after the verdict, where, at defendant’s request, it was delayed for the purpose of hearing a motion for a new trial, which is authorized by section 1191 of the Penal Code.
HALL, J.
Defendant was convicted of the crime of forgery, and upon judgment being pronounced appealed to this court from the judgment and order denying his motion for a new trial.
In apt and sufficient language defendant was charged both with falsely making, and knowing the same to be false and forged, uttering and passing as genuine and true a certain check, which is set out in the information. Both the making and uttering are charged in the information as having been done with intent to defraud one John Ratti, to whom it is alleged the check was passed as true and genuine by defendant.
The check, as set out in the information and as proved, was drawn upon the First National Bank of Oakland, California, for the sum of eighteen dollars, payable to “Frank H. Silva or bearer,” and purported to be signed “Manuel Babtist” as drawer thereof. It also purported to be indorsed on the back thereof “Frank H. Silva.”
The evidence showed that defendant passed the check to John Ratti as true and genuine, and obtained thereon from John Ratti the sum of eighteen dollars. Upon presentation at the bank upon which it was drawn it was not paid, for the reason that no Manuel Babtist had or ever had had an account at such bank. A brother of defendant, however, learning of the matter, subsequently paid the amount of the check to Ratti.
Evidence was given by an expert in handwriting that the written portion of the check, including the name “Manuel Babtist” and the indorsement, “Frank H. Silva,” were written by the same person who wrote certain exemplars .used for comparison. The writer of these exemplars was proven to be the defendant. Evidence was given by a police officer that after diligent inquiry, including an examination of the directory of all the cities and towns of Alameda County, he could find no such person as Manuel Babtist. In addition there was the testimony of the cashier and the bookkeeper of the bank that no such person had or ever had had an account
[58]
with the bank. This testimony was ample to support the theory that Manuel Babtist was a fictitious person
(People
v.
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