People v. Griffith

• Decision Date: 28 October 1953
• Docket Number: Cr. 5026
• Citation: 262 P.2d 355,120 Cal.App.2d 873
• Parties: PEOPLE v. GRIFFITH.
• Court: California Court of Appeals Court of Appeals

Page 355

262 P.2d 355

120 Cal.App.2d 873

PEOPLE v. GRIFFITH.

Cr. 5026.

District Court of Appeal, Second District, Division 3, California.

Oct. 28, 1953.

Hearing Denied Nov. 24, 1953.

Charles C. Montgomery, Jr., Burbank, for appellant.

Edmund G. Brown, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

Defendant was charged in each of two counts with the offense of issuing checks without sufficient funds. Pen.Code, § 476a. Count I alleged that on October 10, 1952, defendant drew and delivered to Walter Munstenteiger a check for $25 drawn on the Bank of America with intent to cheat and defraud Munstenteiger, Von's Market, and Lynwood, California, Branch of the bank, knowing at the time he had not sufficient funds in or credit with the bank to meet the check in full on presentation for payment. Count II contained similar allegations, the date being October 16, 1952, and the amount $27. The parties were the same except the defendant was alleged to be the person to whom the check was drawn and delivered. The court, sitting without a jury, found defendant guilty as charged in each count. He appeals from the judgment.

Defendant's principal contention is that there was no evidence of an intent to defraud.

The parties stipulated that the checks were made and issued by defendant for value to Von's Market on the dates charged, and that at the time of the issuance and delivery of each of them he did not have sufficient funds in or credit with the bank to meet payment in full on presentation. Prior to October 1, 1952, defendant had lived in Compton, California, and had had an account with the Compton Branch of the Bank of America. He moved from Compton to South Gate, and on September 30, 1952, he opened an account with the Lynwood Branch of the Bank of America. About October 1st defendant presented a check signed by him and drawn on the Compton Branch to Munstenteiger, assistant manager of Von's Market in Lynwood, which was cashed by Von's Market and dishonored. During the following week defendant went into Von's Market and told Munstenteiger the check would not be good because he had written it on the wrong branch. Munstenteiger then changed the word Compton on the check to Lynwood and took it to the Lynwood Branch where it was honored. When defendant told Munstenteiger the check was written on the wrong branch he neglected to enter the amount of the check, $25, in his check book. With this exception, all checks presented by defendant to Munstenteiger prior to October 10th had been honored. The record does not disclose the number. On October 10th there was a balance of $6.39 in the account. On that day, defendant presented the check of that date to Munstenteiger, who authorized its payment. Defendant cashed it at the checking counter in the market. On October 11th defendant deposited $70.98 in the Lynwood account. On October 16th defendant presented the check of that date to Munstenteiger who authorized its payment; defendant cashed it at the checking counter in the market. On that day there was 27 cents in the account. On October 22nd or 23rd defendant went to Munstenteiger and told him he (defendant) expected a couple of his checks back, that he would have the money in the bank to cover them, and that they would be taken care of that week end when he got his pay check. Munstenteiger told him: 'Don't worry about it. They will be taken care of.'

Munstenteiger testified that prior to October 23rd 'we had checks that went through, and some that didn't'; that as to the checks which did not go through, he did not discuss the matter with defendant, but simply sent them through again and they were honored, with the exception of those of October 10th and 16th; that about October 23rd defendant told him those of the 10th and 16th were going to be dishonored and they were dishonored on the following day. Defendant testified that at that time he had a $100 bonus check coming from the place where he had previously worked and was to receive a pay check of $70 that week end; he collected the $70 on the 24th. He had been fined by the municipal court on a charge which is not disclosed. On the 24th he appeared in the municipal court and asked for an extension of time within which to pay the fine. The court excused him from the fine and ordered that he spend the week end in jail, to be released the following Monday morning in order to get to work. Munstenteiger learned that defendant was in jail, became alarmed and had the complaint in the present case issued.

On October 3rd defendant gave his landlady a check for $30 and on October 10th another check for $30. Several days later his landlady told him one of the checks had been returned by the bank and that she had been advised the other check was going to be returned. Defendant gave her $60 in cash and she gave him the $30 check which had been returned and a receipt for the other one.

On October 28th a policeman had a conversation with defendant in which the officer showed him the checks of October 10th and 16th which had been cashed at Von's Market. Defendant stated he had cashed them, that at the time he did not keep an account of the checks he was cashing, therefore he did not know the amount he had in the bank at the time he wrote the checks; that he thought some of them might come back N.S.F., but he had tried to plan on taking care of them in the future.

Defendant testified that about October 22nd or 23rd he discovered his bank account was overdrawn and:

'Q. By Mr. Montgomery: Now, when you found that your account was overdrawn, what did you do about it? * * * A. I called the bank the following day.

'Q. All right. Now, what did you do about it, as far as the Von's Market is concerned? A. Nothing at that time.

'Q. When did you talk to the Von's Market about it? A. Oh, not for about three or four days later.'

He testified he did not on either October 10th or 16th know that his account was overdrawn and that he did not intend to defraud. He further testified:

'Q. And you passed a check, sometime before the 10th of October, at Von's Market, in the amount of $25.00, and that check was on the Bank of--the Compton Bank, and you ultimately made arrangements to have the name 'Compton' changed to 'Lynwood'; is that right? A. Yes, sir; the same bank, but a different branch.

'Q. And that threw your accounting off $25.00; is that right? A. Yes, sir.

'Q. Other than this $25.00 check that was drawn on Compton and later corrected to Lynwood, did you have any other accounting problems in your account? A. Yes sir, I did.

'Q. Tell me this: This receipt--this rent receipt--is that what it is? A. Yes--no, sir; it is not a rent receipt. It is a receipt for a check that she said was going to be returned.

'Q. It is a receipt for two $30.00 checks which you made good to your landlady? A. Just one, because the other check she gave me, but this one she didn't have yet to give me.

'Q. One of them was made good by the exchange of the check, and the other one was made good by sort of anticipation; is that it? A. Yes, sir.

'Q. Now, do you have any explanation as to why these two $30.00 checks bounced, or were about to bounce, when this $25.00 check was the only amount your account was off? A. Well, yes, I do, in that I couldn't understand, at the time, and I called the bank the following day, and they said I had $57.00 in the bank. * * *

'The Witness: I don't honestly understand it myself, why I was overdrawn, except that I called the bank and they said I had $57.00. That was after this happened. And I gave her sixty. The following day I called the bank and I had fifty-seven, but I had made a deposit between the time this check was written and the time that I called the bank. All my deposits were made by mail, and the only thing that occurred to me was that one of my mail deposits had not gotten to the bank before the check did.

'Q. By Mr. Finnerty: I note the receipt is dated the 17th. When were the two $30.00 checks given? A. October 10th.

'Q. And on October 10th, you gave a $25.00 check to Von's and two $30.00 checks to your landlady; is that right? A. Yes, sir--no, sir. I don't think I gave a $25.00 check to Von's. It was returned October 10th, drawn on the Compton Branch. Is that the one?

'Q. You gave this $25.00 check to Von's on October 10th, did you not, drawn on the Lynwood Bank? A. Oh, this is the one, yes, sir. That's right.

'Q. Then you wrote at least three checks on the 10th, two to your landlady and one to Von's? A. Two to my landlady and one to Von's, yes.

'Q. And, as near as you know, you had funds in the bank to clear all of them, except that you were $25.00 off because a Compton check, unknown to you, had cleared through Lynwood; is that it? A. Yes, sir.

'Q. Well, do you have any explanation as to why the $27.00 check bounced on the 16th, then? A. Yes, sir. That is what I was starting to say. I called the bank and they said I had $57.00 in the bank, so I figured since I had already paid out $60.00 out of my own pocket, that wasn't being charged to my account, and that I was entitled to add that $60.00 to my account, figuring that I must have a balance of $117.00.

'Q. I am going to ask you one more question: How much money did you have to pay out of your pocket to pick up all of the overdrawn checks you wrote during the month of October? A. Well, I gave my landlady $60.00.

'Q. All right. A. I believe that was all.

'Q. You had to put out $27.00 to pick the one written on the 16th, didn't you? A. No, sir. That wasn't until November.

'Q. The question was, How much money did you have to put out of your own pocket to pick up all of the checks you wrote during the month of October that were overdrawn? A. I am sorry.

'Q. Two to your landlady; that is sixty. One here that is twenty-seven. Is that right? A. Yes.

'Q. One here that is twenty-five; is that right? A. Yes.

'Q. Now, there were other checks, too, were there not?...