In Re Griffin

TYLER, P.

J.

Habeas corpus.

The petition recites that Bussell L. Griffin is imprisoned and restrained of his liberty by the sheriff of the city of San Francisco, by reason of an information being filed against him under which he is charged with the commission of a felony in violating section 476a of the Penal Code, relating to issuing bank checks with intent to defraud. That his confinement is illegal in this, that before the filing of said information he had not been legally committed on the charge by the magistrate for the following reasons: That the undisputed evidence adduced by the people at the preliminary hearing shows: (1) That petitioner did not commit the offense or any offense charged in said information, but, on the contrary, the facts show that no crime had been committed; (2) That no check was ever uttered or delivered by defendant; (3) That the check set out in the information was post-dated and the payee instructed that defendant had no funds in the bank to meet the check and that the same was not to be presented for payment until defendant advised said payee to do so, and which instruction was never

given;

(4) That the check was never cashed, but was deposited by the payee, Mrs. Thomas Fleming, for collection with the Mercantile Bank, the officers of which told her at the time not to draw against the check as it would take a few days to collect it; (5) That the proof fails to show any intent to defraud. The evidence taken at the preliminary hearing shows petitioner delivered to one Mrs. Thomas Fleming the following instrument in writing:

“The Bank of Palo Alto, No. 108.

“Palo Alto, Cal. January 28, 1927.

“Pay to the order of Mrs. Thomas Fleming $310.00, Three Hundred ten and 00/100 Dollars.

“B- L. Gbiffith.”

[781]

It further shows from the testimony of Mrs. Fleming, the payee named in the check, that the same was post-dated and that petitioner had informed her that he did not have funds in the bank upon which the check was drawn to meet its" payment, but for her to withhold it until such time as he advised her to present it, as he was expecting to receive funds from his father. Notwithstanding these instructions, Mrs. Fleming deposited the check for collection before receiving such advice, at which time she was informed by an officer of the bank not to check against it until the amount was collected by the bank. Contrary to these instructions she drew upon her account for $125. The check given to her by petitioner being returned unpaid, there was insufficient funds in her account to cover the amount she had drawn. An officer of the bank then caused the arrest of petitioner. Mrs. Fleming settled with the bank on her overdraft. Except in this particular no money was ever paid on petitioner’s check either to defendant or to anyone else. Mrs. Fleming refused to swear to a complaint against petitioner as she considered she alone was to blame for his predicament in having deposited the check before being advised to do so. Under these circumstances it is manifest that there is an entire lack of evidence or probable cause to connect petitioner with the offense charged, and it utterly fails to show any intent to defraud. Where the maker of a check, at the time of delivery thereof to the payee, makes known to the latter that he has no funds in the bank to meet the payment of the check there is no