People v. Chapman

• Decision Date: 16 December 1957
• Docket Number: Cr. 5782
• Citation: 319 P.2d 8,156 Cal.App.2d 151
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles CHAPMAN, Defendant and Appellant.

Page 8

319 P.2d 8

156 Cal.App.2d 151

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles CHAPMAN, Defendant and Appellant.

Cr. 5782.

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

Dec. 16, 1957.

Rehearing Denied Jan. 13, 1958.

Harold J. Ackerman, Los Angeles, under appointment by the Court, for appellant.

Edmund G. Brown, Atty.Gen., Elizabeth Miller, Deputy Atty.Gen., for respondent.

FOX, Acting Presiding Justice.

Defendant was convicted of six counts of forgery (Penal Code, § 470) and one count of grand theft (Penal Code, § 487, subd. 1). He appeals from the judgment. ¹

Since defendant challenges the sufficiency of the evidence to sustain the conviction upon each of the counts, it is necessary to state the facts of each transaction in detail.

Count I relates to a check for $25 which Ruth Lander cashed for defendant on August 29, 1955. He entered a liquor store on Hollywood Boulevard, operated by Mrs. Nettie Brandt, between 8:00 and 9:00 o'clock in the evening of that date and asked Mrs. Brandt to cash a check for him. Mrs. Brandt mistook defendant for another man who had cashed a check at the store previously, and told defendant that she did not have sufficient money but that her daughter would be there later and would cash it for him. Her daughter, Ruth Lander, arrived at the store at approximately 10:45 p.m. Defendant returned shortly thereafter. Mrs. Lander did not know defendant, but she cashed the check because she understood her mother knew him. The check was dated August 30, 1955, made payable to the order of Robert Weldon for $25, was drawn on a check form of Trip-Charge, Inc., and was purportedly signed by Irving W. Parker, West Coast Division Manager for this company. Mr. Parker, however, did not sign the check, and did not authorize anyone to sign his name to it. In exchange for the check, Mrs. Lander gave defendant merchandise valued at $1.15 and the balance in cash. In due course the check was dishonored by the bank, and Mrs. Lander never received any money for it. She then notified the Trip-Charge company. Investigation disclosed that certain checks of that company were missing.

On August 30, 1955, a special checking account was opened in the name of Robert Weldon at the Hollywood-McCadden Branch of the Citizens National Bank. The initial deposit was $50. On the following day an additional deposit of $65 was made in the account. When the deposit slip was presented at the teller's window it was complete in all respects except the transit number, which the teller inserted. This deposit was made up of two checks, one purported to be the personal check of Irving W. Parker, payable to the order of Robert Weldon, in the sum of $15, and drawn on the California Bank; the second check was similar to the first except that it was dated August 31, 1955 and was in the sum of $50. The teller did not recall the person who presented the two checks. Mr. Parker did not sign either of these checks nor did he authorize anyone to sign his name to either of them. He first missed his personal checks when he examined his monthly bank statement and discovered that he had been charged with checks he did not draw.

On September 2, 1955, Robert Weldon deposited a check for $400 in the above mentioned account. The check was on a form of the Radio Audience Testing Bureau; it was numbered 0701, dated 9-1-55, payable to the order of Robert Weldon, and drawn on the Holland and Hollywood Branch of the Security-First National Bank. The check, purportedly signed by Nancy Akin who was the only person authorized to sign checks of this concern, was first missed when the bank called her on September 2d or 3d. She then discovered that one entire page had been taken out of a new checkbook. The page consisted of three checks, one of which was numbered 0701. Miss Akin did not sign the check in question nor did she authorize anyone else to sign it.

On September 6, 1955, defendant presented a completely filled out check to a teller at the bank where he had his above mentioned checking account. The check was in the amount of $200, payable to the order of cash, drawn on his account in that bank, and signed Robert Weldon. The teller did not require defendant to show any identification but examined his account to see whether it contained sufficient funds to cover the amount. The teller paid defendant the $200 represented by the check.

Early in September, 1955, an employee of Ralph's Grocery Company cashed a $50 check for a person who bought groceries in the amount of $8.59, and gave him the balance in cash. The check was dated September 3, 1955, and payable to the order of Robert Weldon; it was written on a form of Trip-Charge, Inc., and bore the purported signature of Mr. Parker.

On or about September 12, 1955, another check dated September 8, 1955, in the sum of $50, payable to the order of Robert Weldon, was also cashed by Ralph's Grocery Company. This check, too, was on the form of Trip-Charge, Inc., and bore the purported signature of Mr. Parker. However, he neither signed nor authorized his signature on either of these checks. Neither of the employees who cashed the checks remembered the person who presented them.

The defendant did not take the witness stand, nor was any evidence offered in his behalf.

"The crime of forgery consists either in the false making or alteration of a document without authority or the uttering (making use) of such a document with the intent to defraud." People v. McKenna, 11 Cal.2d 327, 332, 79 P.2d 1065, 1068, Penal Code, § 470. "To constitute fraud by uttering or passing of a forged instrument, as defined in section 470 of the Penal Code, three important factors are requisite: (1) It must be uttered, published, passed, or attempted to be passed, as true and genuine; (2) It must be known by the person uttering or passing it to be false, altered, forged, or counterfeited; (3) It must be with intent to prejudice, damage, or defraud some person." People v. Smith, 103 Cal. 563, 565, 37 P. 516, 517. We must, of course, assume in favor of the verdict the existence of every fact which the jury reasonably could have deduced from the evidence. It is the settled law of this state that a conviction will not be reversed for insufficiency of the evidence unless it clearly appears "that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below." People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778, 780.

Count I

Applying these principles, it is apparent there is ample evidence to sustain defendant's conviction on count I. There can be no doubt that the check for $25 which he gave to Mrs. Lander in exchange for merchandise and cash was forged. It is a reasonable inference that defendant presented the check as a genuine document. As said in People v. Walker, 140 Cal. 153, at page 155, 73 P. 831, at page 832. "The tender of a check purporting to be signed by a certain person is in itself a representation that the check is genuine. It will not be inferred that a person intends to present a forged check in the absence of evidence to that effect." In the course of the transaction Mrs. Lander asked defendant, "How come you are cashing a check a day ahead of time." ² Defendant replied: "Well, he gave me a check a day ahead of time." This statement logically refers to the drawer of the check and constitutes an implied representation that the check was genuine. Also the evidence reasonably supports an inference that defendant knew the check was forged. The person named as payee was Robert Weldon. The circumstances justify the inference that defendant represented himself to Mrs. Lander as the payee, Robert Weldon. Mrs. Lander's testimony supports such an inference. This conclusion is strengthened by the fact that the check (People's Exhibit 1) bears only two endorsements: the first is that of Robert Weldon, the second that of Mrs. Lander. In this connection it should be noted that "The possession of an instrument recently forged, by one claiming under it, like the possession of goods recently stolen, is evidence against the possessor." People v. Smith, supra, 103 Cal. at page 566, 37 P. at page 517; People v. Cline, 79 Cal.App.2d 11, 14, 179 P.2d 89; People v. Ruiz, 103 Cal.App.2d 146, 149, 229 P.2d 73. Also, it should be observed that defendant did not take the stand to explain how he was able to get possession of the check as payee without knowing that it was a forgery. While the "failure to testify will not supply a lacuna in the prosecution's proof" (People v. Ashley, 42 Cal.2d 246, 268, 267 P.2d 271, 284), "[a] defendant's failure to take the stand 'to deny or explain evidence presented against him, when it is in his power to do so, may be considered by the jury as tending to indicate the truth of such evidence, and as indicating that among the inferences that may reasonably be drawn therefrom, those unfavorable to the defendant are the more probable.' People v. Adamson, 27 Cal.2d 478, 489, 165 P.2d 3, 9" ibid; People v. Goldstein, 136 Cal.App.2d 778, 790, 289 P.2d 581; People v. Williams, 151 Cal.App.2d 173, 311 P.2d 117. As pointed out in the Adamson case, supra [27 Cal.2d 478, 165 P.2d 9], "[t]he failure of the accused to testify becomes significant because of the presence of evidence that he might 'explain or *** deny by his testimony' (Art. I, § 13, Cal.Const.), for it may be inferred that if he had an explanation he would have given it, or that if the evidence were false he would have denied it." [ Citations.] In the absence of any such explanation by defendant or any other witness the jury...