People v. Sauer, Cr. 2858

• Decision Date: 25 September 1958
• Docket Number: Cr. 2858
• Citation: 163 Cal.App.2d 740,329 P.2d 962
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Garl G. SAUER, Defendant and Appellant.

Page 962

329 P.2d 962

163 Cal.App.2d 740

The PEOPLE of the State of California, Plaintiff and Respondent, v. Garl G. SAUER, Defendant and Appellant.

Cr. 2858.

District Court of Appeal, Third District, California.

Sept. 25, 1958.

As Modified on Denial of Rehearing Oct. 20, 1958.

Hearing Denied Nov. 19, 1958.

William H. Phelps, Fall River Mills, for appellant.

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

SCHOTTKY, Justice.

Carl G. Sauer was charged with six counts of forgery. He has appealed from the judgment entered after a jury found him guilty as charged.

Two informations, each charging three counts of forgery, were filed against Sauer. The first, which will be referred to as the Warner matter, charged three counts of forgery in May, 1957. The second, which will be referred to as the Copeland matter, charged three separate forgeries on August 25, 1955. A typical count reads as follows:

'That said Carl G. Sauer, on or about the 25th day of August, 1955, in the County of Shasta, State of California, did fraudulently make, forge and counterfeit a certain check in writing for the payment of money in the sum of One Hundred Seventy and 43/100 Dollars ($170.43) and did then and there utter, publish and pass the same, knowing that the said check was false, forged and counterfeited, with the intent then and there to defraud James H. Rodgers, Verner Copeland, Red Mt. Lumber Company and Bank of America, a corporation.'

A motion to consolidate the two informations for trial was granted. Thereafter; Sauer sought inspection of certain evidence in the sheriff's possession. The court ordered the sheriff's office and the district attorney to deliver all exemplars of handwriting which were used in the investigation of the case and inspection of all books of account of the concerns which Sauer was accused of defrauding by forging checks. The motion was denied as to any reports and papers and investigation information in the hands of the sheriff or district attorney. As to the documents denied, the court said that the motion was denied without prejudice to a renewal of the motion at the trial if it became proper.

The evidence as to the Warner counts shows that Sauer was employed by Dawson & Warner, a lumber concern, as a bookkeeper. As part of his job he prepared all the payroll checks. Sauer passed three checks with Mr. Warner's signature to various merchants. Mr. Warner testified that he had not signed the checks in question nor had he authorized anyone else to sign his name to the checks. Lewis Davis, an examiner of questioned documents for the Bureau of Criminal Identification, compared the signatures on the allegedly forged checks with exemplars of Mr. Warner's signature and stated that in his opinion the signatures on the checks were not those of Mr. Warner.

The evidence as to the Copeland accounts shows that at the time of the alleged forgeries, Sauer was employed as a bookkeeper by a company Mr. Copeland controlled. All checks drawn by this company were drawn on an account known as the Vernon Copeland Special Account. Mr. Copeland also testified that he had not signed the checks which were the basis of the charge nor had he authorized anyone else to sign his name to the checks. Mr. Davis also testified that these checks were not signed by Mr. Copeland. Again Mr. Davis used exemplars of Mr. Copeland's signature in making his comparisons. Sauer passed each of the checks in question. Sauer admitted to Deputy Sheriff Richard Hart that the endorsement of his name on the back of each check was written by him.

Appellant's first contention is that the informations fail to charge a public offense under the provisions of section 470 of the Penal Code and that the informations do not inform him of the charge. It is contended that the charge is fatally deficient because there is no allegation that the instruments would, if genuine, be of legal efficacy or could have any tendency to defraud another.

We do not agree with this contention. Section 470 of the Penal Code provides that 'Every person who, with intent to defraud, signs the name of another person, or of a fictitious person, knowing that he has no authority so to do, to, or falsely makes, alters, forges, or counterfeits any * * * check, draft, bill of exchange * * * for the payment of money * * *; 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.' It is apparent that the informations charged the several offenses in the language of the statute. As stated in section 952 of the Penal Code: 'Such statement may be made in ordinary and concise language without any technical averments or any allegations of matter not essential to be proved. It may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused.' All that is required is that the pleading in substance charge the defendant with the commission of a public offense in words sufficient to give him notice of the offense of which he is accused. (26 Cal.Jur.2d, Indictment and Information, p. 495.)

The informations in the instant case without doubt informed the appellant of the offenses charged against him.

Appellant next contends that the trial court abused its discretion in not permitting pretrial inspection of the handwriting expert's report. The court denied the motion without prejudice to a renewal of the motion at the trial if it became necessary. It is contended that the basis of the prosecution's case was the testimony of the handwriting expert and that without an opportunity to examine it before trial the defense could not adequately prepare to meet it. The motion was not renewed at the trial. Pretrial inspection of reports in the hands of the prosecution is not a matter of right in all cases. The record does not show that a motion for inspection was made at the trial. Under such circumstances we do not believe that appellant is in a position to raise the point on appeal.

Appellant contends also that the trial court abused its discretion in consolidating the two cases for trial. The two informations dealt with crimes committed approximately twenty-two months apart. The informations were filed about four months apart. Section 954 of the Penal Code permits consolidation of two or more accusatory pleadings charging the same class of crimes. This test was met. In People v. Feigelman, 65 Cal.App. 319, 223 P. 579, consolidation was approved where the crimes were committed thirteen months apart. The rule is that whether or not consolidation should be granted rests in the sound discretion of the trial judge whose decision will only be disturbed where an abuse of discretion is shown. People v. Duane, 21 Cal.2d 71, 130 P.2d 123. In view of the similarity of the charges we cannot hold that there was any abuse of discretion in consolidating the cases for trial.

The most serious contention of appellant is that the trial court erred in admitting in evidence certain handwriting exemplars. At the trial, Lewis Davis, an examiner of questioned documents, was called by the prosecution and in his examination of the...