In Re Leuschen

BARNARD, P. J.

This is an application for a writ of

habeas corpus.

The petitioner was charged, in a complaint filed in the Justice’s Court of Fullerton, Orange County, with violating section 476a of the Penal Code by issuing and passing six certain checks with the knowledge that he did not

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have sufficient funds in nor credit with the banks upon which they were drawn to meet the same in full. After a preliminary hearing a commitment was issued holding him to answer.

This petition is based upon the contention that no reasonable or probable cause was shown, since the evidence is entirely insufficient to show any intent to defraud. It is well settled that the gist of the offense here charged is the fraudulent intent and there must be both an intent to, defraud and a present knowledge upon the part of the one issuing such a check that he has neither funds in nor credit with the bank upon which it is drawn to meet the same when presented (Pen. Code. sec. 476a;

In re Scott,

85 Cal. App. 170 [259 Pac. 101];

People

v.

Owens,

57 Cal. App. 84 [206 Pac. 473];

People

v.

Frey,

165 Cal. 140 [131 Pac. 127];

People

v.

Routh,

182 Cal. 561 [189 Pac. 436]).

Two of the six checks involved herein were drawn on the First Bank of Highland under date of June 13, 1932, each check being for $1250. From the transcript of the evidence before us it appears that these checks were on that day at Highland, in San Bernardino County, delivered to someone whose identity does not appear. The person to whom they were made payable testified that they were handed to him in Orange County by a truck driver. There is an entire absence of any evidence to indicate that the person to whom they were handed in Highland was not an agent of the payee and, so far as the record shows, the jurisdiction of any offense in connection therewith was in San Bernardino County.