People v. Brierton

HENDERSON, J.,

pro

tem.

By a grand jury indictment of three counts the defendant was charged with the offense of forgery of indorsement and with two separate acts of grand theft. Count I charged him with forgery of indorse-' ment of the name of Alta B. Vail to a certain draft or check in the sum of $1800.63 with the intent to defraud her and the Security First National Bank and the United States First National Bank of Los Angeles. Count II accused defendant of the theft of the $1800.63 represented by the said cheek from said United States First National Bank, and count III alleged that he stole the check itself from the said Alta B. Vail. He was convicted by a jury of the offenses charged in the first and third counts, but was acquitted as to the second. From these judgments of conviction and the order denying his motion for a new trial the defendant prosecutes this appeal.

The prosecution in order to support the various allegations of the indictment was required to rely upon the testimony of the prosecuting witness, Alta B. Brierton, the wife of the defendant. Her testimony, pertinent to the inquiry here, and which is somewhat unusual, discloses the following facts: At the times alleged in the indictment Mrs. Brierton, who was employed as a school-teacher under her maiden name of Alta B. Vail, and the defendant, were residing together in the city of Los Angeles. Although living under the same roof their relations were not cordial, and they infrequently dis

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cussed business and money matters. In August, 1930, she determined to close her account with the Security First National Bank, and received from it the said cashier’s check in which she was designated payee by the name of Alta B. Vail. The check, which represented her own personal property acquired by inheritance, was placed by her in a closet of their home for safekeeping. Several weeks later upon the discovery of its disappearance and after a thorough search over a course of several days, she notified the bank of that fact and requested it to investigate the matter. She neither gave the check to defendant nor authorized him to indorse her name thereto. Nor was the defendant given permission to use the money represented by the cheek, and no part of its proceeds were, to her knowledge, ever turned over to her at any time by him. Also, she testified that during the fall and winter of 1930, “he never gave me any money”.