People v. McDaniel, Cr. 6059

• Decision Date: 06 February 1958
• Docket Number: Cr. 6059
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Grover Cleveland McDANIEL, Defendant and Appellant.

Page 497

321 P.2d 497

157 Cal.App.2d 492

The PEOPLE of the State of California, Plaintiff and Respondent, v. Grover Cleveland McDANIEL, Defendant and Appellant.

Cr. 6059.

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

Feb. 6, 1958.

Hearing Denied April 2, 1958.

Grover Cleveland McDaniel, in pro. per.

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

SHINN, Presiding Justice.

Grover Cleveland McDaniel was accused by information of two offenses of forgery of a fictitious name. Pen.Code, § 470. The information alleged that he had suffered a previous felony conviction of violation of the Dyer Act, 18 U.S.C.A. § 2311 et seq., another conviction of burglary and had served terms of imprisonment therefor in a federal prison and a state prison in California. Defendant acted as his own counsel in the trial proceedings. He pleaded not guilty and denied the prior convictions. Trial was to the court, which found him guilty of both offenses of forgery and found the priors to be true. McDaniel made a motion for new trial, which was denied, and he was sentenced to state prison for the term prescribed by law. He appeals from the judgment and the order denying him a new trial.

The convictions of forgery were based upon evidence of the following facts: Harold Epstein was the President of Bookcases, Inc., a corporation engaged in the manufacture of furniture at its plant on South Hill Street in Los Angeles. Epstein testified that defendant was employed by the corporation some time in January 1957 and that the employment terminated one day in the middle of February when defendant failed to show up for work. Several weeks later, Epstein was asked by officials of the Union Bank & Trust Company to come to the bank and examine two checks drawn on the account of Bookcases, Inc. One check was in the amount of $53.36 and was dated March 2nd; the other was in the amount of $53.47 and was dated March 8th. Each check was signed 'Harold Ayston' and was made payable to Grover McDaniel. The checks purported to be for wages earned; they bore notations in the upper left-hand corner of deductions for social security and withholding taxes. The reverse of each check bore the handwritten endorsement 'Grover McDaniel 4419 S. Towne Ave.'

The witness then discovered that two checks were missing from the center of the corporation's checkbook. He stated that he knew nobody by the name of Harold Ayston, that he alone had authority to sign checks on behalf of Bookcases, Inc. and that he had not given any one permission to sign company checks.

The $53.36 check was presented for cashing on the afternoon of March 2nd to Eleanor Melendez, an employe of Handy Payments at an address on South Broadway in Los Angeles. Mrs. Melendez testified that she cashed the checks and identified her initials on the face of the instrument. The check was handed to her by a colored man, but she could not identify him as defendant. The other check was approved for cashing on March 8th by Samuel Brownfield at his market on Vermont Avenue in Los Angeles. He had no recollection of the person who presented the check to him.

L. M. Deinert, a police officer for the City of Los Angeles, was one of the investigating officers in the case. While defendant was in custody, Deinert requested him to write his name on a sheet of white paper, together with other words and figures that appeared on the two checks. McDaniel complied with the officer's request; he signed his name 'Grover C. McDaniel'.

K. L. Woodward, an examiner of questioned documents for the Los Angeles Police Department, qualified as an expert witness with reference to the analysis and comparison of handwriting. Woodward testified that he had made a comparison of the endorsements appearing on the reverse of the two checks with defendant's signature on the sheet of white paper. It was his opinion that the person whose signature appeared on the paper was the same person who had placed the endorsements on the checks.

The People introduced in evidence certified copies of judgments of the United States District Court for the District of New Mexico and of the Superior Court of the State of California for Los Angeles County, together with signature cards and fingerprint exemplars. Donn Kelso, a qualified fingerprint expert with the Los Angeles Police Department, testified that he had made a comparison of the exemplars with fingerprint impressions of defendant taken while McDaniel was in custody. It was his opinion that the two sets of impressions were those of the same person. Woodward also stated that he had made a comparison of the handwriting on the cards with the signature obtained from defendant. He gave his opinion that they were signed by the same person.

Officer Deinert was called as a witness by defendant. He testified that he had a conversation with McDaniel after the latter's arrest. Defendant told him that he had never seen the checks, that he did not take them, and that he did not live at 4419 South Towne Avenue but had used the number as a mailing address in the past. Fred D. Brenner, an official of the State Department of Employment, identified his signature on a letter to McDaniel stating that according to the department's records defendant worked for Bookcases, Inc. from January 21st until February 7th, 1957.

Defendant, testifying in his own behalf, denied taking the checks from the company checkbook and denied endorsing and cashing them. The endorsements on the checks were not in his handwriting. He quit work on February 7th and returned to pick up his paycheck the next day. He left Los Angeles in the middle of February and went to Dallas, Texas, where he remained until he was taken into custody on May 31st on the forgery charges. He 'freely and voluntarily returned here when the officer came, to face this charge.' He never lived at 4419 South Towne Avenue but had used it as a mailing address prior to October 1956. On cross-examination, he admitted signing his name on the sheet of white paper at the officer's request. He also admitted suffering the two prior convictions and having served terms of imprisonment therefor.

Defendant has filed several briefs in support of his appeal. The briefs are adequate as a presentation of all the points that could be urged in his behalf. We have made a thorough examination of the record and have discovered no insufficiency of the evidence and no error at the trial.

Defendant argues the following points in his briefs: (1) He was not lawfully apprehended in Texas; (2) he did not waive a jury trial; (3) he was not present during 'proceedings for change of venue'; (4) the court should have instructed the clerk to read the information; (5) he should have been granted a continuance in order to secure the presence of his witnesses; (6) the court should have taken a recess in order to examine the effect of certain statutes; (7) the court erred in permitting the testimony of Epstein at the preliminary hearing to be read in evidence at the trial; (8) the court erred in failing to require a handwriting expert who testified at the preliminary hearing to appear at the trial; (9) impressions of his fingerprints were taken in violation of his constitutional rights; (10) the court 'injected nationality' into the record; (11) the evidence was insufficient to support the convictions of forgery; (12) the court erred in permitting proof of his prior convictions for the reason that the statutes providing for increased punishment of recidivists are unconstitutional.

With respect to the first point, defendant asserts in his brief that the officers who arrested him in Dallas acted without authority, that he was not formally extradited from Texas and that he did not waive extradition. These statements are contradicted by his testimony at the trial. McDaniel then stated that he 'freely and voluntarily returned here when the officer came, to face this charge.'

The second point is that McDaniel did not expressly waive a jury trial. When the cause was called in Department 40 of the Superior Court, the following proceedings occurred:

'The Court: Do you want a Court or jury trial?

'The Defendant: I'll accept a Court trial.

'The Court: You're satisifed to have the Court determine this matter without a jury, are you?

'The Defendant: I will.

'The Court: And will you join in the waiver, Mr. Busch?

'Mr. Busch: Yes, your Honor, we join.

'The Court: On behalf of the People?

'Mr. Busch: Yes.'

The matter was then transferred to another department for trial, whereupon after the commencement of testimony defendant asserted that 'He never asked me did I waive right to a jury trial. I said Court trial would be sufficient. I never waived the right to a jury trial.' and objected to being tried by the court. After hearing the shorthand reporter assigned to Department 40 read his notes of the colloquy we have just set forth, the court overruled McDaniel's objection.

Defendant argues that he cannot be deemed to have consented to a court trial for the reason that he did not expressly say that he waived trial by a jury. The argument is without merit. The effectiveness of a jury waiver does not depend upon the use of any particular form of words by an accused; he need only use language that, in its ordinary meaning, expresses an intention to submit the matter to the court sitting without a jury. People v. Beckworth, 151 Cal.App.2d 842, 312 P.2d 270. In our opinion, defendant's statements were clearly sufficient as an expression of such an intention and they constituted a valid waiver of a jury trial.

Under the third point, defendant claims that he was not present during certain 'proceedings for change of venue', to wit, the transfer of his case from Department 40 of the Superior Court to Department 47 and then to Department 42. His argument rests upon a misconception of the meaning of 'venue'. Venue in criminal...