People v. Whitaker

CRAIG, J.

The appellant herein appeals from a judgment based upon an information consisting of three counts, each of which charged him and one Val Amthor with the crime

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of forgery, under section 470 of the Penal Code. The appeal is also from an order denying his motion for new trial. Appellant was granted a separate trial, and a jury found him guilty under each count. The counts are alike in all respects material here and embody copies of certain checks drawn on the First National Bank at Vernon, California, signed by R. E. Dusenberry, dated, respectively, the 7th, 14th, and 20th of November, 1923, and payable to “C. R. McPhearson Electric Co,” “ C. R. McPhearson” and “C. R. McPhearson Electrical Co.” It is charged that the defendants, without authority therefor, indorsed each of said checks in the name of the payee, and thereupon unlawfully, knowingly, falsely, fraudulently, and feloniously uttered, published, and passed them as true and genuine, with intent to cheat and defraud the payees and the bank.

There is no evidence in the record that either of the payees named in the cheeks in fact existed, and a witness for the people testified that he had been in business at Los Angeles for a period of fourteen years but had never heard of C. R. McPhearson or of a company bearing that name, and that he had been unable to find either of them by a search of the city and telephone directories.

This testimony was objected to on the grounds that it was incompetent, irrelevant, and immaterial and that such evidence would be admissible only upon a charge preferred against one “who makes, passes, utters, or publishes, with intention to defraud any other person, or who, with the like intention, attempts to pass, utter, or publish, . . . any fictitious bill, note, or check, purporting to be the bill, note, or check, ... of some bank, corporation, copartnership, or individual, when, in fact, there is no such bank, corporation, copartnership, or individual in existence, knowing the bill, note, cheek, or instrument in writing to be fictitious,” as provided by section 476 of the Penal Code.

It is conceded by counsel for the prosecution, and, in fact, he asserts that the evidence shows, that the names to whom the checks were made payable were believed to be fictitious, and they assert that the defendant knew that no such person or firm existed. In support of this theory J. F. McPherson was called as a witness for the people and testified that he was an electrical contractor, but that he was not “C. R. McPhearson, ’’ and that he did not know of a person or com