People v. Howard

YORK, P. J. A jury trial having been waived, the court found appellant guilty of the crime of forgery, as charged in an amended information, which also alleged five prior convictions: the first for forgery; the second, fourth and fifth for issuing checks without sufficient funds, and the third for attempted robbery. Appellant admitted the first, second, third and fifth prior convictions, and the fourth was dismissed upon motion of the district attorney.

This appeal is prosecuted from the judgment of conviction and from the order denying appellant’s motion for a new trial upon the following grounds: (1) the evidence is not sufficient to support the verdict; (2) the verdict is contrary to the evidence; (3) the court erred in denying appellant leave to substitute counsel of his own choosing and in the admission of evidence; (4) misconduct of the prosecuting attorney.

It is indicated by the evidence adduced at the trial that appellant had been paroled from Folsom Prison; that J. M. Higman, president of the Reliable Lumber, Inc., located at Rosemead, California, had signed appellant’s parole papers and during the months of April and May, 1940, provided him with sleeping quarters which were adjacent to the office of the said lumber company. The check-book of the company was kept in a desk in the office and it contained checks signed in blank by Mr. Higman upon which were printed the names “Bank of America, El Monte Branch,’’ [724]a,nd “Reliable Lumber, Inc.” On September 10, 1940, the company’s auditor discovered that three of these signed checks were missing from the said check-book. It appears also that during the convention of the Veterans of Foreign Wars held during the latter part of August, 1940, appellant, who was a member of the military police detail of that organization, became acquainted with Mr. Morey C. Serf, district manager of Seagram’s Distilleries Corporation. Mr. Serf testified that in September of 1940, appellant inquired of him if he could obtain through a wholesaler some liquor for use at a committee meeting. Appellant presented to Mr. Serf a check made in favor of the Seagram corporation, but Mr. Serf declined to accept it, stating that the sale was not a Seagram transaction and therefore the check should be made payable either to him (Serf) or the distributor. Appellant left Serf’s ofSce and returned in about two hours and presented to him the check involved in this case, to-wit: Reliable Lumber, Inc., No. 2967, for $100 signed by J. M. Higman, drawn on the El Monte branch of the Bank of America, with the name of the payee blank. Mr. Serf took the check and wrote in his own name as payee and sent appellant to a wholesale distributor to procure the liquor. Mr. Serf cashed the check while in San Diego a few days later and it was thereafter charged to the account of the lumber company by the bank upon which it was drawn. Mr. Higman testified he had not authorized appellant to fill in the check or to remove it or any other cheeks from the cheek-book.