Opinion
Crim. No. 621.
November 11, 1918.
APPEAL from a judgment of the Superior Court of San Luis Obispo County, and from an order denying a motion for a new trial. T. A. Norton, Judge.
The facts are stated in the opinion of the court.
M. R. Van Wormer, for Appellant.
U.S. Webb, Attorney-General, and Joseph L. Lewinsohn, Deputy Attorney-General, for Respondent.
This is an appeal from a judgment of conviction under section 476a of the Penal Code, and from an order denying a motion for a new trial.
Defendant was charged by information with having made, drawn, uttered and delivered to the Commercial Bank of San Luis Obispo a certain check for the sum of $15 on the First National Bank of Los Angeles, with intent to defraud said Commercial Bank, knowing that he did not have sufficient funds or credit with said First National Bank to meet the same. The evidence showed that on March 5, 1918, the defendant presented to the Commercial Bank a blank check of the First National Bank and "wanted to get $15." The teller thereupon filled in the check for that amount to the order of his bank and the defendant signed it. The teller refused to cash the check without the signature of an indorser thereon, and defendant took it away and secured the indorsement of one Kurokawa thereon, after which, on the same day, he brought it back to the Commercial Bank, delivered it, and received the cash on it. The check was returned unpaid and was never paid by the First National Bank, but the amount thereof was later paid to the Commercial Bank by the indorser, Kurokawa.
Two points are made upon the appeal. 1. "That there was no evidence that defendant intended to defraud the Commercial Bank of San Luis Obispo." Appellant urges in this connection that it is apparent from the evidence that if defendant intended to defraud anyone, it must have been the indorser, Kurokawa, who was financially responsible and who did in fact eventually pay the check. It is urged by the respondent that the offense was complete when the defendant first signed and presented the check to the Commercial Bank, without Kurokawa's indorsement thereon, under the terms of the statute, which provides that the making or drawing or uttering or delivering, under the conditions specified, shall constitute the offense. Whether this be correct or not, it seems sufficient to say that when the defendant, upon the second occasion, presented the indorsed check to the Commercial bank for the purpose of getting the money thereon and did thereby obtain the money, these facts, shown by the uncontradicted evidence, warranted the inference by the jury of the further fact that he intended then and thereby to defraud said bank of the money so obtained, if the other elements of the offense were then existing. The circumstance that the Commercial Bank might be able to and did thereafter in fact succeed in transferring the burden of its loss to the shoulders of the indorser, in no way militates against the reasonableness of this inference.
This brings us to the second point urged by appellant, namely: "That there was no evidence that defendant had no funds or credit with the First National Bank of Los Angeles at the time he made the check, or that he knew he had no funds or credit there." The credit remittance man of the First National Bank, who was charged with the handling of all business with outside California banks, testified that he had made a personal inspection of the books of the bank, in company with the auditor thereof, with reference to the particular account of M. Kawano, the name of defendant and the name signed to the check, and that there was no account on the books of the bank in that name other than the one introduced in evidence, and that defendant had no credit with said bank at the time he drew the check or at any time subsequent to October 30, 1912. The account introduced in evidence was in the name of M. Kawano and was opened on October 22, 1912, and closed on October 30, 1912. Appellant urges that the books of the bank were the best evidence to prove these facts, and that the testimony of the witness was therefore hearsay and incompetent. The burden upon the prosecution in this respect was to prove a negative, namely, that the books of the bank did not show a certain thing. If appellant's contention were correct, it would have been incumbent upon the prosecution in this case to bring into court all the books of customers' accounts with the First National Bank of Los Angeles covering a considerable period of time. This brings this case within the well-established exception to the hearsay rule, which is stated as follows: "When it is necessary to prove the results of voluminous facts, or of the examination of many books and papers, and the examination cannot be conveniently made in court, the results may be proved by the person who made the examination." ( San Pedro Lumber Co. v. Reynolds, 121 Cal. 74, 86, [53 P. 410].) This rule is codified in section 1855 of the Code of Civil Procedure, subdivision 5, as follows: "There can be no evidence of the contents of a writing, other than the writing itself, except in the following cases: . . . 5. When the original consists of numerous accounts or other documents, which cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole."
The judgment and ordered appealed from are affirmed.
Conrey, P. J., and James, J., concurred.