People v. Pflug

BARNARD, P. J. The defendant was charged in two counts with violations of section 476a of the Penal Code in that he drew two checks upon the Brawley Branch of the Bank of America in favor of a certain hotel, with intent to cheat and defraud, and knowing that he did not have sufficient funds in or credit with the bank to meet the checks. He first pleaded not guilty, then changed his plea, and still [539]later again pleaded not guilty as to both counts. Trial by jury was waived and the court found him guilty on both counts. He was sentenced to prison, the sentences as to both counts to run concurrently. On this appeal from the judgment he is represented by an attorney appointed by this court.

The sole contention here made is that the court decided the case by applying the wrong test, “in determining the defendant’s guilt upon the state of mind and knowledge of the persons who cashed” these checks. It is argued that the true test is whether or not the defendant had a specific intent to defraud; that the defendant’s testimony indicates that he had reason to believe and honestly believed that the cheeks would be paid; that he testified, with respect to each check, that he informed the person cashing it “that he was having money transferred and would have it in the bank”; that he admitted that he did not have an account in the Brawley Branch of the Bank of America but stated that he intended to transfer funds; that these statements indicate the absence of a guilty state of mind or a specific intent to defraud; that the fact that in each instance he asked for a blank check on a local bank indicated that he was transferring funds; and that had the trial judge applied the correct test and decided the case upon the evidence as to defendant’s intent to defraud, and not as to the knowledge of the parties who cashed the checks, he would have found the defendant not guilty.

The contention that the court’s finding of guilt resulted from the application of a wrong test is based upon a part of the court’s oral remarks just before announcing that he found the defendant guilty. In the comment relied upon by the defendant the court was discussing a “ second ” question, raised by defendant’s testimony, as to whether he had informed the persons cashing the checks that the money was not yet in the bank upon which the checks were drawn. His remark that “That is the real test” was made in connection with his discussion of that issue, and was not intended as the controlling test on the entire case. This was one of the matters to be considered in connection with the issue of intent. (People v. Oster, 129 Cal.App.2d 688 [278 P.2d 39].) The judge had previously discussed the “initial” issue, stating that the real test in that connection was whether the defendant had funds or credit with the bank upon which the checks were drawn. Later, he discussed the credibility of the witnesses, and indicated that he did not believe the