People v. Hawkins

• Decision Date: 14 November 1961
• Docket Number: Cr. 7433
• Citation: 17 Cal.Rptr. 66,196 Cal.App.2d 832
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene Vencil HAWKINS, Defendant and Appellant.

Page 66

17 Cal.Rptr. 66

196 Cal.App.2d 832

PEOPLE of the State of California, Plaintiff and Respondent, v. Eugene Vencil HAWKINS, Defendant and Appellant.

Cr. 7433.

District Court of Appeal, Second District, Division 4, California.

Nov. 14, 1961.

Frank Duncan, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Herbert Davis, Deputy Atty. Gen., for respondent.

BURKE, Presiding Justice.

A jury returned a verdict of guilty against defendant on two counts: in Count I for issuing a fictitious check in violation of Penal Code section 476; in Count II for the crime of forgery of a fictitious name in violation of Penal Code section 470. Defendant was sentenced to prison for the term prescribed by law on both counts, the sentences to run concurrently. Probation was denied. Defendant's motion for a new trial was also denied. Defendant appeals from the judgment of conviction and the order denying the motion for a new trial.

On Saturday evening, June 25, 1959, defendant picked up a suit of clothes made for him by John R. Mendoza with whom he had done business previously. He left a second suit for alterations. Defendant paid for the suit with a check for $218, in which the names of the drawer, drawee and bank were written in by hand. The bill for the suit was $130, and Mendoza advised defendant that he did not have change for the remainder. Defendant told Mendoza he intended to order another suit and for him to apply the balance of the check on the new order.

The face of the check which defendant gave Mendoza was already made out in pen and ink. The check was signed with the name Carol McDonald and with her address shown as 316 Oakhurst, Beverly Hills. Defendant was the payee on the check. There was some discrepancy in the date of the check, and in the presence of Mendoza defendant wrote the numeral '5' on the check, making the date of it read July 25, 1959. Defendant in the presence of Mendoza endorsed the back of the check by signing his signature and placing an address and telephone number thereon.

After defendant left the store Mendoza noticed the check was drawn on the Bank of America located at Seventh and Hill in Los Angeles. He knew that this bank did not have any branch on that corner. Mendoza subsequently ascertained that although there was no such address as '316 Oakhurst,' there was both a 316 North and a 316 South Oakhurst. He discovered that there was no 'Carol McDonald' living at either of those addresses.

The following Monday Mendoza called the telephone number given by defendant on his endorsement of the check and talked with defendant's mother, leaving word for defendant to call him. Approximately three hours later defendant did call him, and Mendoza informed him that the check was no good. Defendant told him he would see him right away so that he could give him something on account and that he was sorry but he had thought the check was good. On the following day, Tuesday, defendant came to Mendoza's place of business and gave him $20 on account. About a week later he picked up the suit which he had left for alterations and paid Mendoza another $20.

Mendoza did not see defendant again until he accidently met him about a month later at which time defendant told him he was down on his luck. He did not give Mendoza any money thereafter, nor did Mendoza hear from him excepting that in September 1959 defendant brought in a friend who wanted some alterations done.

When questioned after being arrested, defendant did not answer the question as to who had written the check. When asked who Carol McDonald was defendant stated that that would come out at the trial and that he had nothing further to say.

Defendant testified that he received the check on July 25, 1959, from a Miss Flo Herman as a repayment of a loan of $175. He said that he had given her $43 in cash to make up the difference between what she owed him and the amount of the check. Defendant asserted that when he gave the check to Mendoza he did not know that it was not good; that after being told by Mendoza that the check was not good he called Flo Herman and asked who Carol McDonald was and was told that it was someone she had bailed out of jail; that this person had forfeited her bail and that she, Flo Herman, had received the check as payment for money owed her; that she had requested Carol McDonald to make the check out in defendant's name because defendant had informed her he needed to be paid right away so he could pay for his suit.

Donn E. Mire, an examiner of questioned documents and handwriting expert employed for six years by the District Attorney of Los Angeles County, testified for defendant that in his opinion defendant did not write the pen and ink writing on the face of the check given to Mendoza.

Defendant contends that prejudicial error occurred when the court admitted testimony over his objection concerning his source of income for a period of three to four years prior to his arrest. This testimony revealed that defendant had operated a bookie shop and that he did not have a federal bookmaker's stamp. When asked concerning further details of his bookmaking operations, defendant invoked the Fifth Amendment. Defendant contends that evidence of unrelated misconduct is uniformly condemned as tending to draw the minds of the jurors from the real point on which their verdict is sought and to excite prejudice and to mislead them. (People v. Glass, 158 Cal. 650, 658, 112 P. 281.)

The People maintain that the inquiry into defendant's source of income was relevant and proper both to clarify an inconsistency in defendant's testimony and to establish that he had a motive for committing forgery. In this connection, defendant testified that he had worked on a part time basis for Flo Herman for about three months ending in June 1959 but that he did not receive any set salary from this job. He said he had had a previous job about three years before June of 1959. He first stated that he had no other source of income, but subsequently said that he did have income, or at least money, from different interests. He was asked how he obtained this source of income and his objection to this question was overruled. It was at this point that he stated that he had operated a bookie establishment.

In a criminal case it is proper and persuasive, although not essential, to present the fact of motive for the crime. (People v. Rosborough, 178 Cal.App.2d 156, 163, 2 Cal.Rptr. 669). In a prosecution for forgery the need or lack of money is always ample motive for passing a fictitious check. Thus, the People correctly contend defendant's financial condition prior to the passing of the check is pertinent, material and relevant, and where relevant and material will not be excluded merely because it may be prejudicial to the accused. (People v. Wooten, 162 Cal.App.2d 804, 816, 328 P.2d 1040; People v. Edwards, 159 Cal.App.2d 208, 212, 323 P.2d 484.)

Defendant also contends that the evidence was insufficient to justify the verdict. It should be borne in mind, in passing on the sufficiency of the evidence to sustain a conviction, that before a reversal may be had it must be made clearly to appear 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.) We must assume, in support of the verdict, the existence of every fact which the jury could have reasonably deduced from the evidence and then determine whether or not the guilt of the defendant is deducible therefrom. The question for the court to pass upon is whether there were facts before the jury to 'justify the inference of guilt.' (People v. Deysher, 2 Cal.2d 141, 149, 40 P.2d 259, 263.) If the circumstances reasonably justify the determination of the trier of fact, the opinion of the reviewing court that those circumstances might also reasonably be reconciled with the innocence of defendant will not warrant interference with the determination of the jury. (People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778.)

'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.' (Pen.Code, § 470; People v. McKenna, 11 Cal.2d 327, 332, 79 P.2d 1065, 1068.) In People v. Morgan, 140 Cal.App.2d 796, 800, 296 P.2d 75, 78, the court stated that forgery 'is committed when one makes or passes a false instrument with intent to defraud.' That the check in question was not genuine was established by the testimony of Mendoza concerning the investigation that he had made of the purported maker together with the testimony of a bank representative to the effect that the particular branch on which the check was drawn was in fact nonexistent. The investigation also showed that the purported maker did not have any account with the Bank of America. This is prima facie evidence that the name of the maker of the check was also fictitious. (People v. Roche, 74 Cal.App. 556, 559, 241 P. 279.) An intent to defraud may be inferred from the fact that a fictitious instrument is presented for payment. (People v. Sheeley, 151 Cal.App.2d 611, 613, 311 P.2d 883.) Possession of an instrument recently forged by one claiming under it is evidence against the possessor. (People v. Smith, 103 Cal. 563, 566, 37 P. 516; People v. Pounds, 168 Cal.App.2d 756, 759, 336 P.2d 219.)

The facts in the case before us are quite similar to those present in People v. Murrie, 168 Cal.App.2d 770, 336 P.2d 559. In the Murrie case defendant was tried for violating Penal Code section 470. Defendant therein was also the payee on a check which he had endorsed and, as in the case before us, defendant also claimed that the check was given to him completely made out by a third party who owed him money. In the Murrie...