People v. McNichol, Cr. 2234

• Decision Date: 20 November 1950
• Docket Number: Cr. 2234
• Citation: 224 P.2d 21,100 Cal.App.2d 554
• Parties: PEOPLE v. McNICHOL.
• Court: California Court of Appeals Court of Appeals

Page 21

224 P.2d 21

100 Cal.App.2d 554

PEOPLE v. McNICHOL.

Cr. 2234.

District Court of Appeal, Third District, California.

Nov. 20, 1950.

Winters & Winters, Benicia, Robert K. Winters, Benicia, for appellant.

Fred N. Howser, Atty. Gen., Gail A. Strader, Deputy Atty. Gen., for respondent.

ADAMS, Presiding Justice.

This appellant was charged with and convicted of the making and uttering of a check drawn upon a bank in which he had no account, in violation of section 476a of the Penal Code. The evidence shows that defendant, a resident of Connecticut, went to Oakland to visit a sister. There, without eating any breakfast on February 10, 1950, he consumed a pint of whiskey and four cans of beer, after which his sister and her husband took him to the highway and left him there to 'hitch-hike' his way to Connecticut. In Vallejo, about 4:30 in the afternoon, he went to the drug store of a Mr. Manfredi, where he represented himself as a doctor living in Vallejo, and presented a check drawn on the Bank of America for $35.00, signed 'Charles J. McNichol, M.D.' He bought two cartons of cigarettes and some cough medicine, received the balance in change and departed. Becoming suspicious, and being informed on inquiry that there was no such a doctor in the town, Mr. Manfredi called the Police Department and also the Bank of America. The following day he took the check to the Bank, where they advised him that they had no such depositor.

On the same day, defendant tendered to a Mr. Berry at a photographer's studio a check for $35 to pay a $10 deposit on a photograph, but departed before the transaction was completed. The proprietor testified that defendant had been drinking, but that he walked and talked all right. Mr. Stoddard, an officer of the Vallejo Police Department, testified that about 12:30 a. m. of February 11, 1950, he encountered defendant in a bar in Vallejo, where the bartender requested the witness to take defendant away as he was drunk and making a nuisance of himself; and that he escorted defendant to a hotel and put him to bed. On reporting for duty about 7:00 a. m. Mr. Stoddard read reports made by Mr. Manfredi and Mr. Berry, whereupon he went to the hotel and arrested defendant who was then sober. Defendant said he had passed three checks, one at a drug store and another at a photographer's, but could not remember where the third was passed.

At the trial defendant testified that the morning of the day when the check was cashed, he had consumed a pint of whiskey and four cans of beer, and that he had no recollection of what his conduct was at the time the alleged offense was committed, nor until he was awakened in a hotel the following morning and placed under arrest. He also testified that he had been drinking to excess for the past eleven years, and that previously he had been charged with issuing worthless checks when he was intoxicated; that he had no recollection of passing checks in Vallejo, and that his memory as to the hours after he was put out on the highway and the time he was awakened in the hotel was 'pretty faulty'; that he did not remember whether he passed a check on February 10th. He did not contend that he was insane, but denied it.

Prior to his trial defendant had been examined by a clinical psychologist, a Mr. Singer, who had subjected him to an examination while under the influence of the so-called truth serum, sodium pentathol. During the trial appellant sought to introduce in evidence a report of statements he had made during such examination, but such testimony was excluded. This he contends, constituted reversible error, first, on the theory of past recollection recorded, Code Civ.Proc. sec. 2047; second, to show the facts upon which Mr. Singer based his opinion; and, third, that introduction of such evidence should be allowed a defendant in support of his defense.

Section 2047 of the Code of Civil Procedure provides that a witness may refresh his memory respecting a fact by anything written by himself, or under his direction, at the time when the fact occurred or immediately thereafter, or at any time when the fact was fresh in his memory, and he knew that the same was correctly stated in the writing; and that a witness may testify from such a writing though he retain no recollection of the particular facts, but such evidence must be received with caution. Since defendant, at the time of the trial, contended that he had no recollection of the circumstances under which the offense was committed, and claims that this was due to amnesia superinduced by his intoxicated condition, obviously any statements which he may have made under the influence of sodium pentathol were not made when the fact was fresh in his memory, and thereafter forgotten, and persual of the notes made during the serum test could not have refreshed his memory if he had none. In fact the record shows that defendant had in his possession the record of what he had stated during the period of narcosis, when he testified, so the conclusion seems irresistible that when the court refused him permission to refer to it near the end of the trial when he was recalled after testifying that he did not remember about passing checks in Vallejo, the memorandum of his statements to Mr. Singer did not refresh his recollection. Nor can it be said that, under the conditions existing when the statements were made, they were made at the time when the fact occurred, or immediately thereafter, or at any time when the facts were fresh in his memory, nor could he say, having no recollection, that the statements so made were correctly stated in the writing. Nor does it appear that had he been permitted to use them they would have revealed that appellant had not committed the crime charged. What defendant expected to show by such notes was not stated. There was adequate testimony that appellant wrote...