People v. Lee

BRITT, C.

The defendant, a Chinese, was accused in this case of the crime of forgery, committed by uttering, etc., with fraudulent intent, a paper writing which purported to be a check for a sum of money dated February 3, 1898, drawn on a certain bank of San Francisco, bearing the signature “J. P. Collin,” payable to the order of defendant and by him indorsed, which check, it is charged, was fictitious—no such person as J. P. Collin being in existence, as defendant well knew. At the trial, which resulted in the conviction of defendant, there was evidence that he passed the check to the complaining witness and obtained from the latter a payment of money on account thereof at the city of Oakland, in Alameda county, on February 9, 1898; that defendant was arrested for the offense on the same day and thereupon claimed that he had received the check two days previously from one Hing Lee, who lived (defendant said) in Santa Barbara county, and was there in the employ of •a person named Collins. The district attorney then offered in evidence a subpoena issued out of the police court of the city of Oaldand on February 11, 1898, directed to “J. P. Collins, Santa Barbara,” requiring his attendance as a witness before said police court on February 17, 1898, in a proceeding which we assume to have been the preliminary examination of the defendant on the present charge; together with the subpoena the district attorney offered also the return of the sheriff indorsed thereon, dated February 15, 1898, setting forth that he received such subpoena on February 14, 1898, and after diligent search and inquiry was “unable to find J. P. Collins in the county of Santa Barbara.” Defendant objected to the admission of this' paper on various grounds not necessary to be here set out; he

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waived the objection, if such he had, that the subpoena was issued from the police court, and agreed that it might be regarded as issued from the superior court where the trial was in progress; the court overruled the objections made, and held in effect that the subpoena and return were competent evidence to prove the nonexistence of the person whose name appeared to be subscribed to the alleged fictitious check.

The return of the sheriff upon process is declared by statute to be

prima facie