People v. Cullen

• Decision Date: 18 September 1950
• Docket Number: Cr. 686
• Citation: 99 Cal.App.2d 468,221 P.2d 1016
• Parties: PEOPLE v. CULLEN.
• Court: California Court of Appeals Court of Appeals

Page 1016

221 P.2d 1016

99 Cal.App.2d 468

PEOPLE v. CULLEN.

Cr. 686.

District Court of Appeal, Fourth District, California.

Sept. 18, 1950.

Hearing Denied Oct. 16, 1950.

J. David Hennigan, Riverside, for appellant.

Fred N. Howser, Atty. Gen., Elizabeth Miller, Dep. Atty. Gen., for respondent.

GRIFFIN, Justice.

It is charged in the first court of the information that defendant Ray Cullen did on January 3, 1949, knowingly, falsely and fraudulently forge the name of Daniel T. Boyer upon the back of a $120 government check and passed it with intent to cheat and defraud said Boyer. Defendant was also charged in a second and third count with violating sec. 2 of Dangerous Weapons Control Law, Stats. 1923, chap. 339, pp. 695, 696, Gen.Laws, Act 1970, and with a prior felony conviction of counterfeiting, as well as a prior felony conviction of assault with a deadly weapon. Defendant admitted the prior convictions, and counts two and three were separated from count one for the purpose of trial on the first count. A jury trial was waived. A plea of not guilty was entered as to the first count. The court proceeded to trial upon that count and it found defendant guilty of forgery as charged. Defendant was committed to state prison on count one. Judgment ran concurrently with the judgment theretofore pronounced on counts two and three. Defendant appealed and only questions the sufficiency of the evidence to justify his conviction on the forgery count.

The evidence shows that defendant lived near Blythe, in a cabin on the bank of the Colorado River with his wife Mary. They were married in August, 1948, and on December 9 of that year Mr. Boyer, stepfather of Mary, came to live with them. Boyer was a veteran, about 80 years of age, and was drawing a pension of $120 a month. On January 3, 1949, defendant presented a pension check in said amount, dated December 31, 1948, and made payable to Daniel T. Boyer, to a bank in Blythe, where defendant was known and had an account. The back of the check carried the endorsed names 'Daniel T. Boyer' and under it 'Ray Cullen' when it was presented for payment and cashed. Boyer was not seen alive after January 4, 1949. In the early afternoon of that day defendant stated that Boyer had gone out on the Colorado River in a boat that morning and that the empty boat was later found. Various relatives of Mrs. Cullen went to defendant's house on the night of January 4, in response to telephone calls that Mrs. Cullen and Mr. Boyer had mysteriously disappeared. One witness asked defendant if Mr. Boyer had received his pension check. Defendant replied that it came on January 1st but Boyer was too sick to go and cash it so he took Boyer with him to town on January 3d and cashed his check; that he tried to help Boyer step from the curb but Boyer insisted he needed no help. On January 6 defendant told certain relatives that he had taken Boyer to town and that he (Boyer) cashed the check and put the money in his wallet. Later in the same day he stated that Boyer had been too ill to go to the bank so he, defendant, took the check in, got the cash for him, and turned the money over to Boyer. Later the same night, defendant told the police officers that when Boyer gave him the check to cash, it was already endorsed by Boyer and that the endorsement was not made in his presence. The police officer later told defendant he believed he had signed Boyer's name as the endorser. Defendant said he had not but that it was signed in his presence. He asked defendant to write some words for him so he could compare the handwriting but defendant refused. On February 27 defendant told Mrs. Cullen's sister that he had not taken Boyer in to cash the check but that he (defendant) had taken the check in and cashed it himself. In March, defendant told another witness that he had taken Boyer to the bank to get the check cashed. This witness then reminded defendant that he had previously told her that he had cashed the check and that Boyer was not taken to the bank. Defendant stated that he was mistaken as to the previous occasion. Defendant then told her that on January 3, he had 'baptized' Mary Cullen, his wife; that 'she was ready to go'. The witness then asked if he had 'baptized' Mr. Boyer, too, and he remarked: 'You can't baptize anybody that is dead.' She then asked him how he could have taken Boyer to get the check cashed on January 3, in the morning, if he was dead, and he told her he could not tell her any more because if he did he would incriminate himself. In another conversation defendant told her that either Mrs. Cullen or Mr. Boyer had endorsed the check and he did not know which one.

During the course of the investigation, a police officer asked the defendant why the endorsement on the check was so different from Mr. Boyer's regular signature. He stated that Mr. Boyer had cut his finger and could not write too well with a bandage on it. The officer then stated that he did not believe it and that the defendant would have been better off if he had said he had signed Mr. Boyer's name with his permission; that the defendant said he would not say that because it was not so; that Mr. Boyer sat at the desk in the house and signed the check himself, and that he had taken it to the bank to get it cashed for him, turning over the proceeds to Boyer when he returned to the house. Defendant later told a witness that it was not true that his wife and Boyer went out in a boat on the river on January 4th, but that Boyer had met his death in a different manner. In another conversation, claimed to have been made under duress, defendant said Boyer died on January 4 from a gunshot wound.

It was stipulated at the trial that Boyer had not been seen since January 4, and that it may be presumed that he was dead and therefore unable to testify at the trial. Six previous monthly pension checks had been endorsed by Boyer in his own handwriting and exemplars of his handwriting were received in evidence. An examiner of questioned documents testified that Boyer did not write his name on the check in question; that it was written by defendant; that the capital letters in the name 'Daniel T. Boyer' were disguised and the slant of the writing was changed from the normal slant which appeared in defendant's signature, and there were many others variations in an endeavor to disguise that signature; that although it did not resemble Boyer's signature, there was little, if any, disguise of Ray Cullen's signature.

At the conclusion of the people's case the defendant moved for an acquittal on the ground that there was no proof of the corpus delicti. The motion was denied. Defendant then took the stand as a witness and testified that the check arrived in the mail on the morning of January 3; that, at his home, he signed Boyer's name to the check at the request of Boyer, who was ill; that he signed his own name to the check at the bank, and after cashing it he returned home and gave the money to Boyer, who gave $20 to Mrs. Cullen, and that Boyer placed the remainder in his wallet.

Although defendant admitted making some false statements to the witnesses described, he denied telling certain other stories related by them. On cross-examination he gave conflicting testimony about the check transaction. He stated that he was at the bank when he signed Boyer's name and at his home when he signed his own name to it; that his wife and not Boyer told him to go and cash the check.

On appeal defendant now argues first, that under sec. 470 of the Penal Code, defining forgery, there are three elements necessary to establish the crime; (a) Signing the name of another; (b) with intent to defraud; and (c) without authority to do so. It is then argued that since the prosecution had not met the burden of showing lack of authority of defendant to sign Boyer's name there was no corpus delicti established; that under the presumption of innocence rule defendant was presumed to have had Boyer's authority to sign his name until that presumption was overcome by competent evidence; and that defendant's motion for a verdict of acquittal upon the close of the people's evidence should have been granted, citing such cases as People v. Mitchell, 92 Cal. 590, 28 P. 597, 788; People v. Whiteman, 114 Cal. 338, 46 P. 99; People v. Lundin, 117 Cal. 124, 48 P. 1024; People v. Maioli, 135 Cal.App. 205, 26 P.2d 871; People v. Hidalgo, 128 Cal.App. 703 18 P.2d 391; People v. Wade, 57 Cal.App.2d 36, 133 P.2d 646; People v. McWilliams, 117 Cal.App. 732, 4 P.2d 601; People v. Stoddard, 85 Cal.App.2d 130, 192 P.2d 472; and 12 Cal.Jur. p. 666, sec. 16.

The rule elicited from the cases cited is that upon a charge of forgery of a check the prosecution has the burden of proving the corpus delicti and must show both that the person whose name is alleged to have been forged is a real person, that his name was signed to the check without his authority, and that to prove an accused person signed the name of another to an instrument and that he passed such instrument as genuine does not prove the commission of a crime. It must still be shown that it was a false instrument and this is not proven until it is shown that the person who signed the other's name did so without authority, and until this proof is met it is not shown to be a false instrument and the defendant is not put to his proof at all.

Conceding the rule thus established, the first question is whether or not there was sufficient evidence, independent of the admissions of defendant, to establish the corpus delicti. It is conceded by the defendant that he did in fact endorse Boyer's name on the back of the check for the purpose of cashing it. His only contention is that the people failed to show he did not have authority so to do. The...