People v. Bercovitz

ANGELLOTTI, J.

Defendant was convicted of a felony and appeals from the judgment and from an order denying his motion for a new trial. The information was drawn under the provisions of section 476a of the Penal Code, and charged the defendant with having on or about the sixth day of February, 1911, at Bakersfield, California, with intent to defraud

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one H. Cohn, made, uttered, and delivered to said Cohn a check drawn for the sum of eighty-five dollars upon a. Bakersfield bank, when he, the defendant, had not sufficient funds in or credit with the bank to meet the check in full on presentation, as he then and there well knew. A correct copy of the alleged check was contained in the information and was as follows: “2/6 1911 No.- The Bank of Bakersfield Pay to H. Cohn or bearer $85.00 Eighty five and no/100 Dollars. (Signed) B. Bercovitz.” The evidence showed that the defendant on Saturday evening, February 4th, entered the jewelry store of the complainant and purchased a diamond ring and a pair of cuff: buttons which he took away. When the price for the articles was agreed upon he gave in payment his check for the sum of money mentioned. This check was post-dated by two days, so that it was not payable until Monday, February 6.

Defendant, as one of his grounds for reversal, urges that the evidence does not sustain the verdict, because a post-dated check is not such an instrument as is intended to be described by section 476a of the Penal Code. The section mentioned reads as follows: “Every person who willfully, with intent to defraud, makes or draws, or utters, or delivers to another person any check or draft on a bank, banker, or depositary for the payment of money, knowing at the time of such making, drawing, uttering or delivery, that he has not sufficient funds in or credit with such bank, banker or depositary to meet such check or draft in full upon its presentation, is punishable by imprisonment in the state prison for not less than one year nor more than fourteen years. The word ‘credit’ as used herein shall be construed to be an arrangement or understanding with the bank or depositary for the payment of such check or draft.”

Defendant had a checking account with the bank of Bakersfield from November, 1910. At the close of business on February 4, 1911, which was a Saturday, his balance was only $23.62. No further deposit was ever made by him The ehéck was refused payment for want of funds. The evidence was ample to support the conclusion that defendant knew that he had not sufficient funds in or credit with said bank to meet such check or draft upon-its presentation, and that-he made, drew, and delivered the same to Cohn with the intent, to de