People v. Rosborough

Citation2 Cal.Rptr. 669,178 Cal.App.2d 156
Decision Date18 February 1960
Docket NumberCr. 6838
CourtCalifornia Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. James ROSBOROUGH, Jr., Defendant and Appellant.

Umann & Marks, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Convicted of forgery of an endorsement of a certain check (Penal Code, § 470), 1 defendant was granted probation and now appeals from the judgment (per Pen.Code, § 1237, subd. 1), and from the order denying his motion for new trial.

Counsel advance three points for reversal, (1) failure to establish a corpus delictiat the preliminary hearing, (2) failure to establish a corpus delicti at the trial in the superior court, (3) insufficiency of the evidence to sustain the finding of guilt.

It is conceded that appellant passed as genuine a check bearing a forged endorsement and that intent to defraud would follow from proof that he knew that endorsement to be forged. In their reply brief counsel say: 'Respondent concedes the three elements of uttering or passing a bad check as being (1) It must be passed as true and genuine, (2) It must be known by the other to be false, and (3) There must be an intent to defraud someone.

Appellant concedes to Respondent's quite logical argument that if element two is satisfied, then the third element would be satisfied a posteriori.

'Respondent's brief indicates that there is some question as to the use by Appellant of the words 'corpus delicti', and, in this connection Appellant to clarify any misunderstanding does use it as synonymous with 'sufficiency of the evidence'. The main problem can thus be resolved to whether or not there was sufficient evidence to show, circumstantially or directly, that at the time the check was uttered it was known by the utterer (defendant) to be false.' The appeal thus reduces itself to a question of whether the evidence is sufficient to support the implied finding of guilty knowledge which was made by the trial judge after a non-jury trial.

In passing upon this question certain basic rules of review must be kept in mind. "We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict.' If the circumstances reasonably justify the verdict of the jury, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury.' People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778, 780. 'Even testimony which is subject to justifiable suspicion does not justify a reversal of a judgment, for it is the exclusive province of the jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' People v. Carlson, 73 Cal.App.2d 933, 940, 167 P.2d 812, 816. The rule is equally applicable to issues (such as defendant's guilty knowledge) whose solution depends upon circumstantial evidence, for the question whether those circumstances are equally consistent with innocence is one of fact for the jury except in those instances where the court can say as matter of law that there is no substantial evidence to support a finding against the defendant upon the particular issue. People v. Wales, 136 Cal.App.2d 846, 852, 289 P.2d 305; People v. Newland, supra, 15 Cal.2d 678, 680-681, 104 P.2d 778; People v. Perkins, 8 Cal.2d 502, 509, 66 P.2d 631; People v. Daugherty, 40 Cal.2d 876, 885, 256 P.2d 911; 19 Cal.Jur.2d § 485 at p. 251. It is true in criminal as well as civil cases that the court is not bound to accept testimony of the appellant which is not actually convincing even though it be uncontradicted. 'It must be considered in connection with other testimony and reasonable inferences therefrom, and the rule that the jury properly may reject part of the testimony of a witness, though not directly contradicted, and combine the accepted portions with bits of testimony or inferences from the testimony of other witnesses thus weaving a cloth of truth out of selected available material.' Nevarov v. Caldwell, 161 Cal.App.2d 762, 777, 327 P.2d 111, 121. 'The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact. It is not whether guilt is established beyond a reasonable doubt.' People v Daugherty, supra, 40 Cal.2d 876, 885, 256 P.2d 911, 916. See also, People v. Poindexter, 51 Cal.2d 142, 148, 330 P.2d 763.

The following statement of facts is based therefore upon those portions of prosecution evidence, statements and conduct and testimony of defendant, testimony of defendant's witnesses, documentary evidence and inferences reasonably drawn which are adverse to appellant's contentions.

On January 19, 1959, defendant was the first customer in the Sunset and Stanley Branch of Security-First National Bank in Los Angeles. He had no commercial account there but did have a savings account with a balance of one dollar in it. He presented to the manager, Mr. Cowling, a check for $3,534.89, dated January 15, 1959, made by William Morris Agency, Inc., payable to Leslie Stevens and drawn upon the Beverly-Wilshire Branch of Bank of America in Beverly Hills. On the back it bore a purported endorsement of Leslie Stevens and that of defendant who used the name Santiago De Santiago. His real name is James Rosborough De Santiago, Jr. It was stipulated that he was also known as James De Santiago; he also used the name Santiago De Santiago, Jr., at times. He testified that his father was an English Negro and his mother a French Negro. The purported signature of Leslie Stevens had been forged by someone. It was followed by the name Santiago De Santiago in defendant's handwriting. He told Mr. Cowling that he had a savings account which was inactive, he had lost the book and he requested a new one which was issued to him in the name Santiago De Santiago. Defendant said he had sold some Hi-Fi record albums and wanted the money in a savings account 'so he could hold on to it.' Mr. Cowling or Mr. Hale, assistant manager, approved the deposit for immediate credit. This was a few minutes after 10:00 a. m. Between 12:30 and 1:00 p. m. of the same day, while Mr. Cowling was out for lunch, defendant presented to teller Nancy Adelson a withdrawal slip for $2,500, saying that the minute he got money something always happened and he had to spend it, had to buy a new car. Mr. Hale okayed the withdrawal, after having verified the sufficiency of the maker's funds to pay the William Morris Agency check, and Miss Adelson delivered the $2,500 to defendant in large bills. Seven days later defendant withdrew $500 from the savings account. Out of these funds and about four days after withdrawal of the $2,500 defendant used $388 as a deposit on a Volkswagon automobile, paid delinquent rent of $115 and some other bills; he had on his person at the time of arrest on February 5, 1959, the sum of $577. Apparently he also used $500 to buy an interest in a dress shop. What became of the balance of the money does not appear.

The background to the forgery is this. Leslie Stevens, a dramatist, received from the William Morris Agency a royalty check for $3,534.89 and on January 16, 1959, went to the Laurel and Sunset Branch of Bank of America to deposit it. Arriving at about 11:00 a. m. he made out a deposit slip and in doing so 'took the check out to look at the amount'; he then got into a line at the teller's window and there realized he had left the check on the table with the pens; he went back to get it but it was gone. He had not endorsed the check or authorized anyone to do so. He looked over the people in the bank some 15 to 20 of them (not seeing defendant, however), looked in the waste basket and saw it was not there, went to the manager and asked him to have payment stopped; he was assured that this would be done. Through some error that did not occur before the check was paid.

On January 28, Mr. Cowling and Mr. Hale called on defendant at his residence, told him there was a discrepancy in the signatures on the check, that it was claimed the first endorsement had been forged and that the bank would look to him for repayment. Defendant seemed upset and claimed that he was the injured party as he had given value for the check, had sold a Picasso painting and some other objects of art; that he had no knowledge of any forgery. To the police at the time of his arrest he said he got the check from a woman he knew as 'Les,' whose husband was Major Goldstein or Goodstein; they were at his house and he sold to them for $3,500 a record collection, some statues, some books and an original Picasso painted on a napkin and appraised at $2,000. 'Les gave me the check and endorsed her name on it and I have her back $43.00 and some cents in change. It thought she was an actress, when I saw the check was from William Morris Agency. I took the check and deposited it in my account at Security Bank. The same day I went back to the bank and withdrew $2,500.00 in cash. A few days later I drew out another $500.00. I used the money to buy a car, pay the dentist and pay other bills.'

In brief, the following is the substance of his testimony at the trial where it developed, however, that the story was one which the court well might have rejected as preposterous. It ran as follows. Defendant had met Mr. Goldstein at the bar of the Garden of Allah in June, 1958, and had seen him three or four times a week at the bar or the pool; never was sure whether the last name was Goodstein or Goldstein. This man introduced defendant to one 'Les' as his wife and defendant assumed her name...

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