People v. Morgan, Cr. 5467

• Decision Date: 16 April 1956
• Docket Number: Cr. 5467
• Citation: 296 P.2d 75,140 Cal.App.2d 796
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Erwin MORGAN, Defendant and Appellant.

Page 75

296 P.2d 75

140 Cal.App.2d 796

PEOPLE of the State of California, Plaintiff and Respondent, v. Robert Erwin MORGAN, Defendant and Appellant.

Cr. 5467.

District Court of Appeal, Second District, Division 2, California.

April 16, 1956.

Rehearing Denied May 1, 1956.

Robert Erwin Morgan, in pro. per.

Edmund G. Brown, Atty. Gen., James L. Mamakos, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Defendant having been convicted of forgery and a charge of prior conviction of felonies--issuing check without sufficient funds and grand theft--having been found to be true, he appeals from the judgment and order denying motion for new trial and attempts to appeal from an order denying a motion in arrest of judgment. Appearing in propria persona he advances numerous contentions, none of which is meritorious.

In varying forms appellant asserts insufficiency of the evidence. The familiar rule governing review is thus stated in People v. Daugherty, 10 Cal.2d 876, 885, 256 P.2d 911, 916: "'[B]efore the verdict of the jury, which has been approved by the trial court, can be set aside on appeal upon the ground' of insufficiency of the evidence, '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. * * * We must assume in favor of the verdict the existence of every fact which the jury could have reasonably deduced from the evidence, and then determine whether such facts are sufficient to support the verdict."' The evidence at bar abundantly establishes the fact of defendant's guilt. He did not take the stand to deny it but did through stipulations and statements in oral argument supply considerable substantial corroboration of the prosecution witnesses.

On Saturday, December 18, 1954, defendant presented to James M. Ross, an employee of Ralph's Grocery Company who was in charge of cashing checks at its store at Third and Vermont Streets, Los Angeles, a certain check for $25 payable to cash and bearing a signature, 'Joseph M. Burman.' The signature had been written by defendant, who knew Joseph M. Burman to be a prisoner in the county jail; Burman had not authorized defendant to sign his name to any check or to endorse his name upon any such instrument. In Ross' presence defendant endorsed the name Joseph M. Burman on the back of the check and wrote the word 'cash' below it. Ross asked defendant for identification and he produced a temporary driver's license issued to said Burman; the license bore the address of 725 South New Hampshire, which was Burman's residence when not in jail. The check bore an address of 715 South New Hampshire. Ross, noticing the discrepancy, asked defendant which one was correct and he said the one on the driver's license; Ross then changed 715 to 725 where it appeared on the check and asked how he could verify the identification; defendant gave him a telephone number as that of his own office; Ross wrote that number on the check, said he would have to verify the same and went to a convenient telephone for that purpose. Defendant, who was just out of jail and had no office, started to leave the store 'rather hurriedly.' Ross saw this, followed him and called out asking defendant if he wanted the check or his change; defendant, then some distance from the store, started to run. At Ross' request James W. Watkins, another Ralph's employee who had seen defendant present the check and then leave the store, joined in the chase and he and Ross caught defendant, subdued him after a struggle and took him forcibly back to the store where he was held until police arrived. When asked why he left without getting money on the check defendant said it was getting around Christmas time and he did not want to have any trouble or get involved and he would just rather leave the check there and for them to keep it; that they could keep it and keep the money from it. He also said that the check was not good at that time but it would be when it was paid; that it would be good when presented to the bank on Monday morning. (It was then Saturday.) In the office, while waiting for the police, defendant repeated that the check was not then good but said it would be honored on Monday. He also told the arresting officer, one Wells, that the check was not then good but would be so on Monday. To officer Boring, on December 20th, defendant said that he had presented the check at Ralph's Grocery store on Saturday, that People's exhibit 1 which was then shown him was the check, that as 'they' were going to verify it he started to leave the store without getting any money or merchandise, that Joseph M. Burman was a name that he used because he had the identification for that name, that he did not know Burman, that he had just recently been released from the county jail on an appeal bond and had several contacts to make where he could obtain some money that was owed him, that he had been unsuccessful in accomplishing this, needed some money to live on until the first of the week and used this method to get some money to provide for himself until Monday when he intended to open an account in the name of Joseph M. Burman to make this check good. Asked what he had shown for identification he said that he had used the temporary driver's license that was taken from him at the time of his arrest (being People's exhibit 2); that he had found it in a waste basket in the office of his attorney, Lowell Lyons. 'I asked him if he knew a Joseph Burman and had permission to sign his name and he said he did not, that he intended to open this account and that this check would be good upon presentation.' Defendant also said that as soon as he got some money from these various contacts he would open an account in the name of Joseph Burman so that this check would clear.

Joseph M. Burman testified that he last saw the driver's license in his own wallet which he gave to his wife with instructions to turn it over to his attorney, Lowell Lyons. Also that he gave defendant no permission to use the license for identification or otherwise and did not authorize him to sign the Burman name or to endorse it on any check; that he had no account in the branch bank on which the subject check was drawn.

Although defendant did not testify, he said to the jury in an opening statement that he wrote the check and presented it to Ralph's store; this he repeated in his final argument, adding that he walked out of the store. Throughout the trial he insisted that he had authority from Burman to sign his name and to use his driver's license as identification. He produced certain witnesses from the county jail who undertook to sustain these claims (which he did not support by his own oath). One of them had been convicted of armed robbery, another of burglary and a third of bookmaking. The jury did not believe them and took no stock in defendant's arguments.

Appellant has asserted at all times that forgery was not proved because the check was never presented to the bank and no one was defrauded because he got no money on it. This argument does not go to the gist of a forgery charge. That crime is committed when one makes or passes a false instrument with intent to defraud. '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. Sec. 470, Pen.Code. Whether the forged instrument is one of a particular name or character or, if genuine, would create legal liability, is immaterial; the test is whether upon its face it will have the effect of defrauding one who acts upon it as genuine.' People v. McKenna, 11 Cal.2d 327, 332, 79 P.2d 1065, 1068. 'In the case of a forgery of an instrument it is not necessary that the forged writing create a valid and legally enforcible obligation in order to constitute the making of it a forgery. It is sufficient that it may possibly deceive another and was prepared with intent to deceive and defraud another. Where the writing alleged to have been forged shows on its face that it might be the means of fraud, no averments of extrinsic facts to show how this could be are necessary.' People v. Brown, 101 Cal.App.2d 740, 742, 226 P.2d 647, 649. Failure to consummate the intended fraud is not of the essence. People v. Horowitz, 70 Cal.App.2d 675, 688, 161 P.2d 833. Defendant also claims that there was no showing that the check was not good; but the proof that Burman had no account in the bank on which it was drawn sufficiently disposes of that argument, as does the further fact that the check was a forgery.

The evidence is ample to prove without the aid of defendant's admission above mentioned the fact of the forgery of the check by defendant and its utterance by him.

Defendant claims that he was denied fundamental rights, such as the right to aid of counsel. The record shows that on seven different occasions, beginning with arraignment and continuing throughout the trial, defendant rejected offers of counsel, voicing a desire 'to remain in pro. per.' Defendant conducted all proceedings of the trial, examining and cross-examining witnesses, making numerous objections, and displaying familiarity with many of the technicalities of a criminal trial. Finally, on May 9th, the time set for sentence and judgment, defendant moved for a continuance of three weeks in order to obtain counsel. This date was almost three months after his initial refusal of such aid. The court adverted to defendant's former refusals of such offers and denied the motion. This ruling is the basis of defendant's claim of denial of due process. There is no semblance of merit in it. The right to counsel had been intelligently, effectively and repeatedly waived and defendant was not entitled to further delay upon the statement that he then desired counsel. In re Connor, 16 Cal.2d 701, 709, 108 P.2d 10; People v. Simon, 107 Cal.App.2d...