People v. Fowzer

• Decision Date: 05 October 1954
• Docket Number: Cr. 5216
• Citation: 127 Cal.App.2d 742,274 P.2d 471
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Pliantiff and Respondent, v. Joseph Michael FOWZER, Defendant and Appellant.

Page 471

274 P.2d 471

127 Cal.App.2d 742

The PEOPLE of the State of California, Pliantiff and Respondent, v. Joseph Michael FOWZER, Defendant and Appellant.

Cr. 5216.

District Court of Appeal, Second District, Division 1, California.

Oct. 5, 1954.

Paul K. Duffy, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Jay L. Shavelson, Deputy Atty. Gen., for respondent.

WHITE, Presiding Justice.

In an information filed by the District Attorney of Los Angeles County defendant was charged in Count I with the offense of forgery, Penal Code, Sec. 470, and in Count II with the crime of grand theft, Penal Code, Sec. 487, Subd. 1. Count I alleged that the defendant forged a certain check in the amount of $760, and that he passed the same knowing that said check was forged, and with the intent to defraud. Count II alleged that the defendant did willfully and fraudulently take and steal the foregoing check.

After the entry of not guilty pleas to both counts the cause proceeded to trial before a jury resulting in verdicts finding defendant guilty as charged in both counts of the information. Following denial of his motion for a new trial defendant was sentenced to state prison on each count, the sentences to run concurrently. From the judgment of conviction and from the order denying his motion for a new trial defendant prosecutes this appeal.

The record reflects that the following is a fair epitome of the facts surrounding this prosecution. Upon the illness and hospitalization of his child, William E. Henry assigned two insurance policies to the Los Angeles County Department of Charities for collection and payment for medical attention. Since both policies were paid in full, steps were taken by the Department to convey the excess amount to the insured. A warrant for $760 was thus drawn upon the County Treasurer and mailed to the insured's last known address. The insured was not at this address and the warrant was returned. The defendant, who was employed by the County as a Collection Investigator, was asked to help locate Mr. Henry. He reported a telephone conversation in which Mr. Henry requested that the warrant be remailed to the first address. The warrant was sent by registered mail, and picked up at the Post Office by an individual identifying himself as William E. Henry, and signing the receipt 'W. E. Henry.' The handwriting expert testified that this receipt was actually signed by defendant.

The warrant was then endorsed with the names of Mr. Henry (the payee), Walter G. Stennett (a close acquaintance of defendant's), and Miss Corrine Olazebal (defendant's then fiancee and present wife), and deposited in the latter's account. The handwriting expert testified that Mr. Henry's name was forged upon the warrant by defendant, but was less certain as to the other two signatures. The expert also testified that defendant had executed part of the bank deposit slip with which the warrant was deposited.

In addition, there was evidence that defendant attempted to get possession of the check before it was remailed, and that Mr. Henry's file was stolen from the Department of Charities by an unknown person and later turned up at Mr. Stennett's apartment at which defendant had formerly resided.

As a witness in his own behalf defendant denied that he signed the name of the payee to the warrant or the signatures of the other endorsers contained thereon. As to the deposit slip which contained the item of $760, the amount of the warrant here in question, defendant testified that he frequently made deposits for Miss Olazebal, and that her name as printed on the deposit slip, 'looks very much like mine, but I can't state for sure'. He denied, however, that he made any deposit of $760, because 'I certainly would remember an amount like that, I didn't deposit it'. Defendant also denied that he signed the name 'W. E. Henry' on the postal return register receipt or that he ever received a registered letter in Long Beach.

The witness Corrine Olazebal in whose name and bank account the warrant in question for $760 was deposited, testified that she did not make the deposit nor did she have any knowledge that any one was making such a deposit to her account.

As his first ground for reversal appellant asserts that the admission of certain bank records was error because of the failure of the prosecution to produce the custodian of such records and that the evidence given thereon was admitted without sufficient foundation therefor and amounted only to conclusions on the part of the witness.

In this regard it appears that Harlan W. Adolph testified he was assistant cashier at the Bank of America Branch in which the warrant was allegedly deposited, and that he had access to the records of that bank. He identified People's Exhibits 6 and 7 as the Bank's ledger record of Miss Olazebal's account, and Exhibit 8 as a letter from the Main Branch requesting reimbursement from her, due to the forgery of the payee's signature on the warrant. When these records were offered in evidence objection was interposed by appellant. Appellant objected on the ground that 'these records were not produced by an individual who was the custodian of the business records, and therefor there has not been sufficient confirmation as required by the Civil Code. We have this individual that works for the bank, but we don't have any one to show who was the custodian'. The objection was overruled.

From the foregoing it is manifest that the only objection made in the trial court to the admission into evidence of these records was that they were not produced by the custodian thereof, and, for the first time, appellant urges on appeal that the records were inadmissible upon the additional grounds that there was no testimony as to their mode of preparation or that they were made in the regular course of business, at or near the time of the event testified to, as required by section 1953f of the Code of Civil Procedure.

It is well settled that before an appellate tribunal will give consideration to an objection to evidence, the proper ground for its exclusion must have been clearly specified to the trial court. People v. Renek, 105 Cal.App.2d 277, 283, 233 P.2d 43. And this is especially true, where, as in the instant case, the objection could have been cured by the party offering the testimony if the reason for which it had been objected to had been given in the trial court. People v. Tolmachoff, 58 Cal.App.2d 815, 826, 138 P.2d 61. Where, as in the case now engaging our attention, the proffered testimony is claimed to be imperfect because of the lack of preliminary proof which might or might not have been supplied by the party offering such testimony, the objection must be specific and it must point out the alleged defect.

With this admonition to members of the bar we shall however, consider the claims of appellant in the instant case. The records here in question were not rendered inadmissible by failure to preliminarily show that the witness was the actual custodian thereof. Section 1953f of the Code of Civil Procedure specifically provides that such records shall be competent evidence '* * * if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.' (Emphasis added.)

The hard and fast rule that the custodian of the records must be produced is specifically dispensed with by the statute. Undoubtedly the legislature determined that such a rule provoked undue interference with the operation of business enterprises and was unnecessary to insure reliable evidence. In the words of our Supreme Court in Loper v. Morrison, 23 Cal.2d 600, 608, 609, 145 P.2d 1, 5: 'It is the object of the business records statutes to eliminate the necessity of calling each witness, and to substitute the record of the transaction or event. It is not necessary that the person making the entry have personal knowledge of the transaction. [Citing cases.]' See also, Nichols v. McCoy, 38 Cal.2d 447, 449, 450, 240 P.2d 569.

Where, as in the case now before us, the determination of the trial court that the foundation...