People v. Brown

• Decision Date: 18 November 1955
• Docket Number: Cr. 5383
• Citation: 137 Cal.App.2d 138,289 P.2d 880
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ellen BROWN, Defendant and Appellant.

Page 880

289 P.2d 880

137 Cal.App.2d 138

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ellen BROWN, Defendant and Appellant.

Cr. 5383.

District Court of Appeal, Second District, Division 2, California.

Nov. 18, 1955.

Henry Grivi, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., James C. Maupin, Deputy Atty. Gen., for respondent.

MOORE, Presiding Justice.

Appellant was convicted of six counts of forgery of endorsement of checks. Penal Code, sec. 470. She demands a reversal of the judgment on the grounds of (1) insufficiency of evidence to the effect that she had no authority to endorse the payee's name; (2) insufficiency of proof of intent to defraud; (3) prejudicial error in sustaining 'objections by People to questions on cross-examination of Mary Hile,' the payee of the checks. She also appeals from the order denying motion for new trial. The judgment ordered appellant to be imprisoned in the county jail, the sentences to run concurrently for one year.

Ellen Brown, a widow, was employed by Mary Hile and her husband Harvey in 1951 for compensation on a daily basis. Soon thereafter, the Hiles employed her to reside in their home and take care of them for the rest of their lives in return for a remainderman's interest in their home. They delivered her an agreement on the bases proposed and Harvey executed a will bequeathing a life estate to his wife, and at her death his share to go to appellant. To that plan Mary agreed. The accused performed her promises through the last illness of the husband prior to October 2, 1951, and continued to serve the widow. In December 1952, Mary deeded the home to appellant, reserving a life estate. In April 1954, Mrs. Hile visited a friend at Lake Elsinore. Thence, she was taken by her grand niece, Hazel Hahn, to visit the latter's mother at San Bernardino.

In July 1954, a complaint was filed by the district attorney accusing appellant with three forgeries and a grand theft involving some of the checks in evidence in the instant action, and the deed of Mrs. Hile to appellant in December 1952. At the hearing of the matter, the municipal court dismissed the complaint for the reason that Mrs. Hile could not deny that the endorsements on the checks were her own, but 'it looks like my writing.' On September 7, 1954, the indictment of appellant on seven counts of forgery was filed in the superior court.

1.

Mrs. Hile as a witness before the grand jury testified in September that she never, at any time, authorized anyone to sign her name on the backs of the checks involved in this action. At the trial of the cause in the superior court, Mrs. Hile testified that she never gave appellant permission or authority to sign any documents of any nature whatsoever. Notwithstanding such testimony, appellant regales us with the extended cross-examination of Mrs. Hile whereby it is shown that she had a very poor memory of events of the preceding two years; could not recall the case against Ellen Brown in the municipal court, or that Mrs. Brown had been charged with theft of the witness' home, or that she had been in court in July 1954; that she had no recollection of having appeared before the Los Angeles County Grand Jury. In respect to numerous other matters, Mrs. Hile had no memory, and by reason thereof, appellant would have this court weigh Mrs. Hile's testimony and determine that because she was 83 years of age and had a poor memory concerning recent events, the finding of appellant's guilt should be set aside.

Such contention is without legal support. Mrs. Hile was clearly emphatic that she did not endorse her name on the several checks involved; did not authorize appellant to endorse 'Mrs. Hile' or 'Mary Hile' on any check. The evidence shows that the $25 check (count I) payable to Mrs. Hile was paid to appellant through the teller, Mrs. Hudson, at the Bank of America, September 4, 1953; that the $25 check (count II) was paid to appellant by a teller of the Bank of America; that the check for $4.80 dated January 25, 1954, (count IV), payable to Harvey Hile was endorsed 'Harvey Hile,' 'Mary Hile,' 'Mrs. Ellen Brown,' and stamped 'J. T. O'Neill.' Don Mire, the expert on questioned documents, testified that both 'Harvey Hile' and 'Mary Hile' had been written by appellant as determined from comparison with a specimen of her penmanship; that the check for $1.50 by the American Trust Company (count V) payable to Mrs. Mary Hile bore the endorsement of that lady in the handwriting of appellant; that the check for $50 (count VI) in favor of Mrs. Mary Hile drawn on American Trust Company by Associated Cooperatives, was cashed at the Citizens National Bank March 5, 1954, that the endorsement of 'Mrs. Mary Hile' was made by appellant; that the check drawn by Associated Cooperatives, Inc. on American Trust Company for $160 (count VII) in favor of Mrs. Mary Hile bears the endorsement of the payee in the handwriting of appellant. Appellant denied having signed Mrs. Hile's name on any check; insisted that while Mary asked her several times to do so, but 'as far as I know I never signed a check. * * * I tried to make her reliant on herself. Mrs. Hile never did one thing for herself. * * * She said, 'Ellen, Harvey wanted you to have the checks and you have to help me sign them,' which I did.'

Appellant's rehearsal of her own testimony in detail can serve no useful purpose here. It was weighed by the trial court along with the evidence on behalf of the prosecution and the ultimate fact of her guilt was determined by that tribunal. That appellant had no authority to endorse Mrs. Hile's name on the checks was proved by the emphatic testimony of Mrs. Hile. That the forged endorsements are in the handwriting of appellant was established by the positive testimony of an expert on questioned documents. That each of the checks was of the value evidenced by its face is not disputed. When a trial court has found the defendant guilty and the finding is supported by substantial evidence, the reviewing court is powerless to reverse the judgment by reason of the sworn denials of the accused. We cannot reweigh the evidence. People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778. Mrs. Hile's testimony that she did not authorize appellant to endorse her name on the checks is substantial evidence and is sufficient to support the implied finding of lack of authority in appellant. People v. Kabakoff, 45 Cal.App.2d 170, 173, 113 P.2d 760; People v. Braun, 14 Cal.2d 1, 5, 92 P.2d 402.

Appellant's authorities with respect to lack of authority, People v. Maioli, 135 Cal.App. 205, 26 P.2d 871; People v. Cullen, 99 Cal.App.2d 468, 221 P.2d 1016; Kiekhoefer v. United States National Bank, 2 Cal.2d 98, 39 P.2d 807, 96 A.L.R. 1244; Sutherlin v. State, 136 Neb. 809, 287 N.W. 614, are not persuasive. The Maioli decision holds that to prove lack of authority to sign a check, the testimony of him whose name was forged is necessary. The Kiekhoefer case is clearly distinguishable. The party accused of grand theft by forging the checks involved had a general power of attorney to act for the alleged victim. In Sutherlin v. State, the uncle whose name was allegedly forged had authorized the boy to sign the check.

2.

Appellant contends that there was no proof of a fraudulent intent in her endorsing Mrs. Hile's name on the checks. But there was evidence of her intention to defraud her benefactress. She endorsed the checks without authority and that implied an intention to defraud. People v. Platt, 124 Cal.App.2d 123, 134, 268 P.2d 529. She used the proceeds for herself; she neither made an accounting to Mrs. Hile nor spent the...