People v. Porter

• Decision Date: 21 October 1955
• Docket Number: Cr. 2617
• Citation: 136 Cal.App.2d 461,288 P.2d 561
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lloyd Ryan PORTER, alias F. F. Porter, Defendant and Appellant.

Page 561

288 P.2d 561

136 Cal.App.2d 461

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lloyd Ryan PORTER, alias F. F. Porter, Defendant and Appellant.

Cr. 2617.

District Court of Appeal, Third District, California.

Oct. 21, 1955.

Lloyd Ryan Porter, in pro. per.

Edmund G. Brown, Atty. Gen., by G. A. Strader, Deputy Atty. Gen., for respondent.

SCHOTTKY, Justice.

Appellant was charged by information with the crime of forgery in violation of section 470 of the Penal Code. He entered a plea of not guilty, and was tried before a jury which rendered a verdict of guilty as charged in the information. His motion for a new trial was denied, judgment was pronounced against him and he has appealed from the judgment and from the order denying his motion for a new trial. Appellant was represented at the trial by counsel appointed by the court, but the notice of appeal and appellant's opening and closing briefs on appeal have been filed by appellant in propria persona.

Appellant urges a number of grounds for a reversal of the judgment and order, but before discussing them we shall give a brief summary of the evidence.

According to the testimony introduced by the people, a few days prior to May 4, 1954, appellant came to the used car lot of the firm of Singleton and Porter in Modesto and looked over the cars. On May 4, 1954, he returned and conversed with Mr. Porter, left again, and then returned the same day and talked with salesman Harry D. Parsons. Appellant said he was shopping for a car for his brother, who ran a truck from Salinas to Patterson, and, after examining a red 1947 Lincoln, said he would tell his brother about it. He then left. Later that afternoon Parsons received a telephone call from a man identifying himself as the brother of the man who had previously looked at the Lincoln automobile. This person asked various questions about the car and then said he would buy it. He instructed Parsons to deliver it to his brother, because he could not come in as he had a run to make from Patterson to Salinas, and he said he would give his brother a check for payment of the car. Later that day appellant again appeared at the used car lot and said he was buying the Lincoln for his brother and had brought a check from him, which he then tendered to Parsons. The check was complete then and was not made out in the presence of Parsons. The check was for $359.08, drawn to the order of Singleton and Porter upon the Salinas Branch, Bank of America, and signed F. F. Porter. Parsons made out the various transfer papers and turned the car over to defendant, who drove off with it. The purchase order was signed by appellant with the name F. F. Porter, although defendant did not say what the supposed brother's name was.

The check subsequently came back from the bank with the notation 'Unable to locate at Salinas Branch.' This bank had had no account since 1946 (that was as far back as the records were checked) in the name of F. F. Porter or Lloyd Ryan Porter or L. L. Porter or L. R. Porter, nor any credit arrangements with such persons. Appellant in the neme of Lloyd R. Porter had had a checking account in that bank which had been closed in January of 1945, and the pass-book therefor was produced showing deposits in the neighborhood of $1,375 prior to 1945 with no listing of withdrawals.

Frank Archibald Porter testified that defendant Lloyd Ryan Porter was his only brother, and that he himself had never used any other name. He said he had not signed the check in question and had never authorized his brother or anyone else to sign his name to any document. He said he had never owned a Lincoln automobile and had never had any dealings with Singleton and Porter. He stated that he had only one checking account, which was in a Compton bank, which was where he lived, and had never had any other checking account there or elsewhere.

An aunt of appellant testified that she knew him as Lloyd Ryan Porter and that he called at her home in early May, 1954, with a red Lincoln car, saying he had purchased it in Modesto with money from his wife.

A used-car salesman from Los Banos testified that on the 5th day of May, 1954, appellant entered into negotiations with him for the trade-in of the Lincoln automobile on the purchase of another car, and that appellant then used the name Lloyd F. Porter and said he had bought the car the day before in Modesto from Singleton and Porter. This witness said he checked with Singleton and Porter in Modesto and verified that appellant had bought the car the previous day. Any discrepancy between purchase of the Lincoln in the name of F. F. Porter and the next day's dealings in the name of Lloyd F. Porter was apparently not noticed or was ignored, and it was not explained. Appellant gave this firm two checks drawn on a Compton bank and signed them Lloyd F. Porter. One was for $410 and was in payment of the purchase of another car, delivery of which was held up for the check to clear, and the other was for about $50 to pay for repairs on the Lincoln. This witness said he then determined that appellant had no account in the Compton bank. The record shows only that the smaller check was returned unpaid. This witness also said that appellant stated he did not have funds enough in a checking account to cover the larger check and would arrange to cover it, but did represent that there were funds enough to cover the smaller check.

On the 5th day of May, 1954, appellant made a purchase from a merchant in Los Banos and gave a check signed Lloyd Porter. The check later came back unpaid.

A police officer from Modesto testified he arrested appellant in Montana in this case and that appellant was going by the name Jack Roland Porter and that appellant claimed an alibi for the day the check in question was passed in Modesto.

Appellant called two witnesses, his daughter and himself. The daughter testified on direct examination by appellant's counsel that about two weeks before the trial an investigator from the District Attorney's office came to her home in Salinas and asked her for some papers containing appellant's signature that she had in her possession and that after he stated that if she did not give them to him he would subpoena them, she gave to him two letters and five checks signed Lloyd Porter and Lloyd R. Porter, and a temporary operator's license issued to Lloyd Ryan Porter. These documents were evidently returned to the witness prior to the trial as appellant's counsel so stated when he was interrogating the witness. They were offered in evidence by the people during the cross-examination of the witness.

Appellant took the stand in his own behalf. He admitted two prior forgery convictions. He said he had used several other names than his real name because of his record. His story was that he went to the lot of Singleton and Porter shopping for a car on the 3rd of May, 1954, and saw the Lincoln and discussed buying it, but that he told Parsons he would not have the money for several days. He said Parsons offered to hold the car if he would put up a deposit or if he would leave a check for it, which would be held by Parsons, so long as the appellant was sure of getting the money. Appellant said that he refused to do this. On the next day, however, he went back but left because Parsons was busy. He returned later in the day and agreed to buy the car as he had in the meantime telephoned his father-in-law and arranged to get the money from him. He and Parsons agreed that the latter would hold a check for the price until appellant got the money to cover it, and so he then wrote a check out at the lot for the car. This check was the one in question. Appellant said he did not represent that he was buying a car for his brother, or that he had a brother by the name of F. F. Porter, and that he used the name F. F. Porter as his own name in buying the car. He said he did not telephone the lot and represent himself as his brother or have anyone do so for him. He said he had no intention of defrauding anyone when he purchased the Lincoln car. Appellant said that on the 6th day of May, 1954, he got an advance of $400 from his father-in-law in San Francisco on a business venture in which he planned to use the car, and on the 7th he went with his wife to the lot of Singleton and Porter and paid Parsons the $359.08 due. In return he asked Parsons for the check but was told it was locked in a safe at the firm's main office, and so it was agreed the check would be mailed back. Appellant said that his copy of the purchase order was receipted by Parsons as paid in full.

On cross-examination appellant's copy of the purchase order was identified and he admitted that it then contained no receipt written upon it. It was put into evidence by the people.

Rebuttal by the people followed in which witness Parsons denied appellant's version of the dealings at the used-car lot.

The pertinent part of section 470 of the Penal Code, which appellant was charged with violating, reads as follows:

'Every person who, with intent to defraud, signs the name of another person, or of a fictitious person, knowing he has no authority so to do, to, or falsely makes, alters, forges, or counterfeits, any [enumerating various instruments such as checks, notes, deeds, etc.]; or utters, publishes, passes, or attempts to pass, as true and genuine, any of the above-named false, altered, forged, or counterfeited matters, as above specified and described, knowing the same to be false, altered, forged, or counterfeited, with intent to prejudice, damage, or defraud any person; * * * is guilty of forgery.'

Appellant contends that the people failed to prove his lack of authority to utter, publish or pass the check in question. However, the record shows clearly that F. F. Porter was a fictitious person and that appellant represented to automobile salesman Parsons that F. F. Porter was his brother and that the check was that...