People v. Wilder, Cr. 2598
| Decision Date | 28 September 1955 |
| Docket Number | Cr. 2598 |
| Citation | 287 P.2d 854,135 Cal.App.2d 742 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Respondent, v. E. C. WILDER, Defendant and Appellant. |
Edmund G. Brown, Atty. Gen., by G. A. Strader, Deputy Atty. Gen., for plaintiff-respondent.
Albert H. Mundt and Thomas E. Smith, Sacramento, for defendant-appellant.
By an indictment, defendant was charged with four counts of violation of Penal Code, section 72 (presenting false claims). The jury found him guilty as charged. He new appeals from the judgment of conviction, whereby he was granted probation subject to certain stipulated conditions, and from the order denying his motion for a new trial.
Defendant makes four main contentions: (1) That the evidence was insufficient to support the verdict; (2) that evidence of a highly prejudicial nature was erroneously admitted by the trial court over his objection; (3) that the court erred in failing to give certain instructions to the jury; and (4) that the court erred in ordering an amendment to the indictment.
The first count of the indictment alleged that on January 15, 1954, the defendant, with intent to defraud the Pacific Fire District, knowingly presented, for allowance and payment, to the district, to the Board of Fire Commissioners thereof and to James H. Hestings, Auditor of Sacramento County, a false and fraudulent payroll claim which defendant knew was false and fraudulent in that it included the names of two persons, M. James and L. Lotts, and alleged that each had performed services as a fireman in a certain amount, whereas in fact neither had performed any services for the district during the period covered by the payroll. Counts 2, 3 and 4 contained allegations identical with those in count one with the exception of the date of presentation and the amounts claimed, and alleged the crimes to have been committed on February 28, 1954; April 7, 1954; and April 30, 1954, respectively. At the commencement of the trial court's instructions to the jury the first count of the indictment was amended to charge the commission of the crime alleged in that count on February 15, 1954, instead of January 15, 1954.
The record discloses that the defendant, at the time of the commission of the offenses charged in the indictment was the fire chief of the Pacific Fire District, Sacramento County. The district was governed by a board of three commissioners. As chief, defendant hired firemen, did all of the bookkeeping, prepared the payrolls and distributed the checks. During this period the district had an assistant chief, one full-time fireman and a number of volunteers. At the end of each of the months in question, appellant presented individually to at least two of the commissioners, for their signatures, a payroll listing the volunteer firemen who had performed services during the previous pay period. They were paid on the basis of the number of calls to which they had responded. Opposite the name of each fireman was the gross amount of pay to which he was entitled. One commissioner testified that when the payrolls in question were presented to him they did not contain the names of M. James and L. Lotts nor were they totaled. A second commissioner testified that no amounts appeared when he signed the payrolls. However, when they were subsequently presented to the county auditor, each payroll contained the names of M. James and L. Lotts, and the signature of defendant. County warrants were drawn for the amounts appearing after the names of each of the persons listed on the payroll and these checks were mailed to defendant who usually distributed them at a meeting of the volunteer firemen, by first reading aloud the names appearing on the warrants and then giving them to the persons named. At none of the meetings in question was the name of M. James or L. Lotts read or mentioned. All of the district personnel testified that they knew of no persons by the names of M. James and L. Lotts who performed any services for the district.
Two income tax withholding certificates were filed with the county auditor and introduced into evidence at the trial. One gave the name of L. Lotts and a nonexistent address. The other gave the name of M. James and an address which was that of a Mr. H. E. Wilkinson who testified that he had lived at that address for 19 years but that he had never heard of the name, M. James. The warrants made payable to M. James and L. Lotts for the months in question were cashed and returned to the county auditor's office and had endorsed thereon the signatures of the payees and also the signature of 'E. C. Wilder.'
Defendant's first contention is primarily predicated upon the admitted facts that at the time the payrolls were presented to the commissioners for approval they were not false. Thus defendant contends that since he was charged with presenting false claims to the commissioners and to the district and to the county auditor, the evidence was insufficient to support the charge.
Although the record is not as complete as it might have been, we cannot say it is not sufficient to warrant the inferences which the jury obviously drew therefrom. The defendant, as chief of the district, performed all of the bookkeeping which included preparation and presentation of payrolls, and distributed the warrants drawn by the county auditor to the firemen at meetings of their association. There was testimony by the county auditor to the firemen at meetings the payrolls were received through the mail; that warrants in favor of the persons named thereon were immediately prepared and mailed to the defendant. Lastly there were the cancelled checks showing the name of defendant as an endorser. From these facts the jury was amply justified in drawing the inferences that to the lists on the payrolls which were signed by defendant, he added the two fictitious names and then mailed such payrolls to the auditor's office; that the payroll checks which were mailed to him by the auditor's office were received by him in the due course of mail; and that from the fact the cancelled checks are endorsed with his name, such checks came into his possession and he, with knowledge of the fictitious character of the payees' names, M. James and L. Lotts, either signed their names or had some other person sign them and in turn then cashed such checks.
Additionally, in connection with his attack upon the sufficiency of the evidence to sustain his conviction, defendant complains that the prosecutor, in his argument to the jury, erroneously stressed most strongly and constantly defendant's failure to testify in his own behalf or to otherwise...
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