People v. Oliver

BARNARD, P. J.

The defendant was charged with the crime of making, drawing, uttering and delivering a cheek upon a bank without sufficient funds to meet the same, the information containing three counts. In the first count it is charged that the defendant on or about the fifteenth day of May, 1930, in the county of Fresno, committed a felony in that he, with intent to defraud- Arthur R. Lind-burg, Inc., a corporation, and also the Fresno Branch of the Bank of America, made, drew, uttered and delivered to Arthur R. Lindbúrg, Inc., a cheek, drawn upon the Fresno Branch of the Bank of America, knowing at the time that he did not have sufficient funds in or credit with said bank to meet said cheek. The other two counts relate to other checks given in the month of June, 1930. The defendant was acquitted on. counts- two and three and found guilty as charged in count one of the information. This appeal is from the judgment, and from the order denying a motion for a new trial.

The first ground urged for a reversal is, that the trial court erred in admitting into evidence what purported to be the original ledger sheet of the bank named, showing the defendant’s account at that bank for the months of May and June, 1930. According to this ledger sheet, defendant’s account with the bank was opened on May 28, 1930. The assistant cashier of this bank appeared as a witness and testified that this ledger sheet was compiled by another person in the bank and that he would not say that it was done under his personal direction. Appellant urges that, under the circumstances, this ledger sheet constituted hearsay evidence and should not have been admitted. He relies on

People

v.

Frey,

165 Cal. 140 [131 Pac. 127],

[679]

and

People

v.

Owens,

57 Cal. App. 84 [206 Pac. 473]. In the Frey case, aside from the defendant’s confession, there was no evidence that the defendant had no funds or credit in the bank on which the check was drawn, that bank being out of the state, except that there was written across the face of the check “no account.” There was no evidence that these words were written by anyone connected with the bank or by anyone who knew or could know the facts. It was held that the absence of some such proof was fatal. In the Owens case, while it was shown that the bank records did not contain the name of the defendant as a depositor, there was no proof of any sort that the defendant did not have credit with the bank to meet the check. Neither of these cases settles the point now before us. The witness, through whom this ledger sheet was admitted into evidence, testified that he was an assistant cashier of the bank in question and had worked for them for twenty years. He testified that the ledger sheet in question “constitutes a record of the bank” and that he knew that it was true and correct, and also that he had examined the original account in the bank. The ledger sheet showed that the account of this defendant was opened on May 28, 1930. When asked- if the ledger sheet was compiled under his direction he replied that it was “compiled at the direction of the officers of the bank, in that way it includes myself and others.” We think that sufficient foundation was laid for the admission of the ledger sheet in evidence