Litt v. Superior Court

NOURSE (Paul), J. pro tem.* The District Attorney of Los Angeles County having by an information containing six counts charged the petitioner with that number of violations of section 487, subdivision 1, of the Penal Code, in that he did willfully, unlawfully and feloniously take certain moneys from Self Service Furniture Mart, a corporation, and the defendant’s motion, made pursuant to the provisions of section 995 of the Penal Code to set aside this information and all counts thereof, having been denied, the defendant, as petitioner here, seeks a writ of prohibition to prevent his further prosecution upon the information.

We have come to the conclusion that a writ should issue as to counts 1, 2, and 3, but that the People are entitled to proceed against petitioner upon the remaining counts.

The facts in the matter are: Petitioner, hereinafter called defendant, was at all relevant times the treasurer of Self Service Furniture Mart, a corporation; one Becker was the president of that corporation, and one Jastro the vice-president.

The corporation maintained a commercial account in the Long Beach National Bank prior to September 22, 1954; a signature card filed with the bank as to the account required cheeks upon the account to be signed by any two of the above-mentioned officers of the corporation.

On September 22 J astro and Litt caused a new signature card to be filed with the bank which required the signatures of Jastro and Litt only. On the morning of September 22, 1954, a check drawn upon this account in the sum of $10,000 was signed by Jastro and Litt. At the time Jastro signed it the name of the payee was left blank, but he testified that it was intended that the corporation be named as payee and that it be deposited to the account of the corporation in a new account to be opened by Litt in the name of the corporation with a branch of the Bank of America.

[72]On September 23 defendant did open a commercial account with the Bank of America in the name of Self Service Furniture Mart, but in the signature card stated that he was doing business under that name and was the sole owner of the business. He deposited the $10,000 check, on which he had filled in his name as payee, in this account. This transaction is the basis of count 5 of the information.

On the afternoon of September 22 Jastro and Litt drew another check upon the corporation’s account in Long Beach National Bank, this check being in the sum of $5,000. This check, like the $10,000 check, did not contain the name of the payee at the time it was signed by Jastro, and Jastro again testified that it was the understanding that the corporation would be named payee and that it would be deposited to the credit of the corporation in an account to be opened with the Bank of America. Petitioner filled in his name as payee and cashed the check on the following day at the drawee bank, and on the same day deposited $5,000 to the account that he had opened at the Bank of America as hereinbefore described. This second transaction is the basis of count 6 of the information.