People v. Clay

• Decision Date: 23 October 1962
• Docket Number: Cr. 7833
• Citation: 208 Cal.App.2d 773,25 Cal.Rptr. 464
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Fred L. CLAY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 464

25 Cal.Rptr. 464

208 Cal.App.2d 773

The PEOPLE of the State of California, Plaintiff and Respondent, v. Fred L. CLAY, Defendant and Appellant.

Cr. 7833.

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

Oct. 23, 1962.

Fred L. Clay, appellant, in pro. per.

No appearance for respondent.

HERNDON, Justice.

This appeal, prosecuted in propria persona, is taken from the judgment following a jury trial wherein appellant was convicted of three counts charging him with forgery in violation of section 470 of the Penal Code. During the pendency of this appeal, this court appointed two different attorneys to assist appellant and this court in reviewing the record herein for the purpose of ascertaining whether or not there is any basis for any claim of prejudicial error.

Both of these court-appointed counsel have made separate reports to us to the effect that, after careful study of the record, they had concluded that this appeal was entirely without merit. After making our own examination of the entire record, we have concluded that no prejudicial error was made in the trial court. Although there is some conflict, the evidence supporting the verdict and judgment is more than sufficient.

In summary, it appears that appellant was employed by the Chemical Contour Corporation as a maintenance foreman until August 6, 1960. At that time he had all the keys to the premises and had trained certain security dogs used by the company as the result of a series of robberies. Although the locks on the front part of the premises were changed on August 6, 1960, and appellant returned his keys shortly thereafter, there was evidence from which it could have been concluded that it would have been possible for a person to enter the building through a window in the rear thereof. The broken latch on this window was not repaired until after August 22, 1960.

On August 22, 1960, it was discovered that a nember of the company's checks were missing as well as a check protector. Mr. Langworthy, a vice-president of the company, testified that the checks involved in the instant action were among the nember series found to be mission and that the impressions made thereon were similar to those made by the stolen check protector.

Mary S. Coleman, a co-defendant who earlier had entered a plea of guilty to one count of the joint information and who was still awaiting sentencing, testified that on August 19, 1960, she had met appellant in a bar. He was unhappy because he had been discharged from his job and had no income. She offered to help him in any way she could. He then told her that he had access to some payroll checks and a sample of the required signature. She agreed to look at them and they drove in separate cars to his former place of enployment. She waited in a bar and he returned shortly with the checks and the check protector and said, 'See, this makes it perfect.' Mrs. Coleman further testified that the same night and the following day certain of the checks were forged, appellant using the check protector on them. He told her that Mr. Langworthy usually signed the checks, so she signed his name simulating his signature as it appeared on a letter discharging appellant. Langworthy had testified earlier that he always signed company checks 'Eugene M. Langworthy', whereas the signature on each of the forged checks was 'E. M. Langworth' as it was on the letter by which he had dismissed appellant as an employee of the company.

Mrs. Coleman and appellant then discussed how the checks were to be cashed. Appellant said that he did not wish to use his name because he had a family and if they used someone else's name they would have to acquire different identification cards. The witness, who already had various 'non-sufficient-fund' checks outstanding, finally decided to use her own name as payee and testified that she expected to use some of the proceeds from cashing the payroll checks to make good her outstanding checks. However, she said that she did not plan ever to make good the payroll checks and had no expectation of 'eventually getting away with this crime.' The witness then described how she passed the checks involved in the instant case. Sometimes appellant was present in the store, and sometimes he waited outside, but in every instance she gave him most of the money obtained. She purchased various items when cashing the checks and there were introduced into evidence various shopping lists in appellant's handwriting on which suggested items of children's clothing were enumerated.

On cross-examination, Mrs. Coleman admitted that originally she had told the police that she had stolen and forged the checks herself. She explained that this statement had been made because of her desire to protect appellant and her own 'in-laws' who also testified during the trial. She indicated that she had changed her mind when her in-law relatives were inconvenienced by being called as witnesses at the trial. She admitted she was testifying against appellant because she felt he had unnecessarily hurt her family and that she felt 'revengeful' toward him.

Various witnesses were called in regard to the cashing of the checks at the various stores where they were employed. Their testimony tended to corroborate that of Mrs. Coleman who was admittedly an accomplice of appellant. Additionally, an in-law relative of Mrs. Coleman testified that on August 21, 1960, appellant and Mrs. Coleman visited him at his residence and appellant indicated that he wanted him to forge some of the checks which, as he admitted to the witness, he had stolen from his former employer. This witness' wife confirmed the fact that appellant visited their home that day although she was ill and did not hear any of the conversation. A Mr. Hooper testified that appellant had sought his participation in the check-passing scheme.

By way of defense, appellant, his wife, and two of his friends sought to establish an alibi on the relevant dates. However, the testimony of appellant's wife was impeached by an officer who testified that at the time of appellant's arrest she had told the officers that her husband had been away from home for two weeks and that when she got up the morning of August 23, 1960, she had found him asleep on the couch and that he must have come in sometime during the night. Appellant also admitted that he had lied to the officers regarding his not having seen Mrs. Coleman during the preceding year, but sought to explain this on the ground that his wife was jealous over his having spent several days with her while on a 'binge' a year earlier.

It is apparent from the foregoing summary that there was abundant evidence to support the jury's verdict and that nothing is thereby presented for consideration by an appellate court. (People v. Kemp, 55 Cal.2d 458, 471, 11 Cal.Rptr. 361, 359 P.2d 913; People v. Williams, 53 Cal.2d 299, 303, 1 Cal.Rptr. 321, 347 P.2d 665.)

The only serious question presented by this appeal arose from the following incident. At the close of the People's case in chief, the deputy district attorney, in the presence of the jury,...