People v. Summar

MARKS, J. Defendant was convicted of violating the provisions of section 476a of the Penal Code by signing, uttering and delivering two no-fund checks, one for $200 and the other for $75. He has appealed from the judgment and from the order denying his motion for new trial. He has attempted to appeal from the verdicts and from an order denying his motion for arrest of judgment, neither of which áre appealable. (Sec. 1237, Pen. Code; People v. Jackson, 24 Cal. App. (2d) 182 [74 Pac. (2d) 1085].)

Defendant’s specifications of error may be considered under two heads: First, that the evidence is insufficient to support the verdict and judgment, and, second, misconduct on the part of the prosecuting officers.

Defendant urges that because there are “discrepancies” in the testimony of some of the witnesses and between that of certain witnesses for the People, we should reject the evidence of all of those witnesses and order a new trial. We have read the entire record and these “discrepancies” concern minor facts. Such discrepancies are more common than uncommon in the evidence of witnesses who are attempting to tell the truth about events which happened several months prior to the time when they testified. At best these discrepancies only go to the weight of the evidence and the credibility of the witnesses. Such questions, in the first instance, are addressed to the jury, and in the second instance, on motion for new trial, they are addressed to the trial judge. These triers of fact accepted the testimony of these witnesses as true, which is final and conclusive on ap[441]peal. Further, a study of the .record leaves the conviction that defendant was guilty of both of the crimes of which he was convicted and that the jury would have been remiss in its duty had it brought in a verdict in his favor on either of them.

During the opening argument of the deputy district attorney the following occurred:

“Mr. Thompson: Now ladies and gentlemen you are not dealing with an ordinary crook in this case. He is no amateur. He is a professional. He has deceived his own people that thought he was legitimately married to their sister, and they were trying to help him at a time before they knew who he was, what he was, or how he would deal with them.

“Mr. King: If the court please, I ask counsel’s pardon for the interruption, but I feel it is my duty to object to that line of evidence, because there is no evidence on which that inference might be drawn.