People v. Montgomery, Cr. 1025

• Decision Date: 20 September 1955
• Docket Number: Cr. 1025
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Rudolph MONTGOMERY, Defendant and Appellant.

Page 520

287 P.2d 520

135 Cal.App.2d 507

The PEOPLE of the State of California, Plaintiff and Respondent, v. Charles Rudolph MONTGOMERY, Defendant and Appellant.

Cr. 1025.

District Court of Appeal, Fourth District, California.

Sept. 20, 1955.

Rehearing Denied Sept. 29, 1955.

Hearing Denied Oct. 19, 1955.

Charles E. Ward, San Bernardino, for appellant.

Edmund G. Brown, Atty. Gen., James C. Maupin, Deputy Atty. Gen., for respondent.

SHELL, Justice pro tem.

Defendant and appellant herein was charged with a violation of Penal Code, § 476a, issuing a check without sufficient funds on May 10, 1953, and with the prior conviction of a felony. He was tried before a jury, which on October 29, 1954, returned a verdict of guilty. His motion for a new trial and application for probation were denied. He was committed to the California Institution for Men at Chino.

Appellant urges a reversal of the judgment of conviction upon the following grounds:

1. That the trial court committed prejudicial error throughout the course of the trial.

2. That the evidence adduced at the trial is insufficient, as a matter of law, to support and sustain the judgment of conviction.

3. That the court improperly, erroneously and prejudicially instructed, and failed to instruct, the jury, as to the law applicable to the evidence adduced during the course of the trial.

4. That the trial court abused its discretion, to the prejudice of appellant, in its comments to the jury at the time of the giving of instructions.

5. That the trial court failed substantially to comply with the requirements of the law in the pronouncement of judgment against appellant.

6. That the trial court committed prejudicial error in denying appellant's motion for new trial.

The following facts were established at the trial: That on May 10, 1953, the accused issued a check in the amount of $800 to J. J. Weseloh, an employee of the Weseloh Chevrolet Company, drawn on the Solano Beach Branch of the Bank of America National Trust and Savings Association and received therefor from Weseloh $800 in currency; that on that date there were in fact no funds at said bank deposited in the name of the accused from which said check could have been paid. The principal issue therefore to be presented to the jury was the existence or lack of existence in the mind of the accused of an intent to defraud the payee of the check.

An account of the accused had been opened at the Solano Beach Branch of the bank on August 6, 1951, and had been maintained there until March 11, 1953, when it was closed out by a check signed by the accused in the sum of $2,319.35, which check was presented at the bank by Charles Adams, admittedly an agent of the accused. This closing check was drawn in the exact amount of the balance then remaining in the account of the accused.

The accused contends that before he issued the check of May 10, 1953, he had instructed his agent Adams to redeposit the money withdrawn from the bank on March 11, 1953, and assumed that Adams had done so. However, there was received in evidence a letter written by the accused on March 12, 1953, to Mr. Hugh Bleu, the Secretary of the Los Angeles Turf Club, concerning certain dishonored checks, cashed by Mr. Bleu and drawn on the same bank at Solano Beach, worded as follows:

'Mr. Hugh Bleu: Dear Hugh: During the past racing season just closed your club very kindly cashed approximately $115,000 in checks for me. I have one employee that looked after all deposits in this account for me. A new business venture demands all my available funds, so I left instructions that when outstanding checks had cleared to transfer any balance to another bank. Yesterday, while in Arizona, I received a call from my employee, saying that he had closed this account while either 1 -2- or 3 checks, were either returned or had not been presented. When you learn the correct amount of these checks please write, phone or wire me and I will send the amount. I sure regret that this has happened. Very truly,

'Monty Montgomery.'

At the time of trial the three checks issued on the same bank at Solano Beach, signed by the accused, and issued on March 5th and March 7th, 1953, in the amounts of $5,000, $3000 and $3000, and cashed at the Santa Anita race track by authorization of Mr. Bleu, having been dishonored by the bank, remained unpaid.

Appellant contends that by reason of the admitted fact that at times the bank had honored checks written by him which resulted in overdrafts at the bank, he believed he had established a credit at the bank and that therefore he believed the bank would honor the $800 check upon which this prosecution was based. He also contended that he had delivered $10,000 to a Miss Marion Wells whom he had met at Santa Anita in March, 1953; that he had requested Miss Wells to take the money to the bank at Solano Beach and deposit it in his name; that he believed she had made the deposit until about six or seven weeks later when he, being in Tucson, Arizona, received a note from Miss Wells, returning the $10,000 to him and stating that the bank had refused to accept the deposit, and that he thereupon returned the $10,000 to the man from whom he had obtained it. Each of these contentions was sufficiently refuted by the statement inthe letter written by the accused to Mr. Bleu on March 12, 1953, the day after his account was closed, in which he wrote as hereinbefore set forth, among other things:

'* * * so I left instructions that when outstanding checks had cleared to transfer any balance to another bank. Yesterday, while in Arizona, I received a call from my employee, saying that he had closed this account * * *'

Since the check involved in the charge was written and cashed on May 10, 1953, the question of whether the accused believed in good faith that either the claimed redeposit of $2,319.35 had been made or the $10,000 fund had been deposited at the bank to the credit of the accused, became a question of fact for the jury. There would be no useful purpose served by a detailed recital of all the evidence in this case. We are of the opinion, after reviewing all of the evidence, that it is amply sufficient to support the finding of the jury and the judgment of the court. Before the verdict of a jury, which has been approved by the trial court, can be set aside on appeal it must be made clearly to appear that there is no substantial evidence to support the conclusion reached in the trial court. People v. Rose, 9 Cal.App.2d 174, 176, 48 P.2d 1009. The foregoing discussion disposes of appellant's contention number 2, that of insufficiency of the evidence.

As his first ground of appeal appellant contends that the trial court committed prejudicial error by the admission of evidence concerning the 3 checks written by appellant on March 5th and March 7th, 1953, and cashed by the Los Angeles Turf Club by authority of the witness Hugh Bleu. This objection, as we understand it, is based upon the contention that a proper foundation had not been laid for the reception in evidence of the testimony of the witness Bleu in that it was not shown that Bleu had personal knowledge of the making of these checks or of their being actually cashed at the request of the accused. We believe this contention to be sufficiently refuted by the letter written by the accused himself, hereinbefore quoted, and which itself admits the issuance of checks by the accused, and admits the closing of the account at the Solano Beach bank upon which they were drawn....