People v. Reseigh

DEVINE, J. Appellant was found guilty of violation of section 476a of the Penal Code of the State of California in that he delivered to George Gallagher a $200 check, knowing at the time that he had not sufficient funds or credit with the bank. On his appeal from the judgment and from the order denying motion for new trial, he does not challenge the sufficiency of the evidence to support the conviction, but claims that certain errors during the course of the trial were sufficiently prejudicial to cause reversal.

It is admitted by appellant that the check was not good. There was evidence that prior to April 13, 1960, the date of the cheek upon which appellant was convicted, seven other checks on the same bank were returned because of insufficient funds, and thereafter 20 checks were unpaid because the account was closed. The police inspector testified that appellant admitted, after his arrest, that when he wrote the particular check in question, he knew it was worthless. He stated that he was not concerned with the checks he had cashed in other states than California, because the offenses elsewhere were misdemeanors. Appellant did not testify at the trial.

Appellant’s first contention is that evidence of similar crimes committed within a few weeks of the offense in question should not have been admitted. It is well established that such evidence is admissible in order to show wilfulness and intent to defraud. (People v. Bercovitz, 163 Cal. 636, 639 [126 P. 479, 43 L.R.A. N.S. 667] ; People v. Montgomery, 135 Cal.App.2d 507, 512 [287 P.2d 520]; People v. Cuthbertson, 176 Cal.App.2d 393, 395 [1 Cal.Rptr. 435]. See also People v. Weir, 30 Cal.App. 766 [159 P. 442].) The trial court instructed the jury that this evidence was admitted for that limited purpose, and it must be presumed that the jury followed these instructions. (People v. Brimmage, 182 Cal. App.2d 66, 70 [5 Cal.Rptr. 661].)

The prosecuting attorney, in his opening and closing statements, used the terms “con man” and “paperhanger” several times to apply to appellant. He also stated that the appellant was cheating people throughout the states and that he passed checks all over. Appellant contends that these statements were clearly outside the scope of argument permitted the prosecuting attorney, that they prejudiced the appellant’s case in the minds of the jurors. Appellant made no objection to these statements during the trial, nor did he request the court to admonish the jurors to disregard the statements. It is a well known rule that such objections cannot first [304]