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


Cr. 2479.

Decided: April 28, 1934

S. S. Hahn and W. O. Graf, both of Los Angeles, for appellant. U. S. Webb, Atty. Gen., and Warner I. Praul, Deputy Atty. Gen., for the People.

Appeal from an order denying defendant's motion for a new trial, after a verdict of guilty was returned after trial upon a charge of forgery.

As grounds for reversal of the order appellant urges: First, that the verdict is against the law and the evidence; second, that the court erred in certain rulings made during the trial, and in refusing to give four of defendant's requested instructions.

It appears that appellant and one Frances M. Boon promoted a corporation known as the Hollywood Vogue, Inc. They with three employees, who apparently had no financial interest in the concern, were named as directors in the articles of incorporation. It seems to have been agreed between appellant and Boon that neither would draw a fixed salary but that each would be entitled to draw the same amount from time to time as the business permitted. A bank account was opened with the Bank of America in the name of Hollywood Vogue, Inc. In due course a signature card or declaration was filed with the bank, which in part reads as follows:

“To Bank of America Resolved: That this corporation establish in its name a Commercial account with the Bank of America National Trust & Savings Association upon such terms and conditions as may be agreed upon with said bank and that the President and Vice Prest. or Secy. of the corporation be and they are hereby authorized to establish such an account. Resolved: That T. Ben Meldrum Prest. and Frances M. Boon Vice Prest. or B. S. Duper Secy. of this corporation be, and they are hereby authorized to withdraw funds of this corporation from the said account upon checks of this corporation, signed as provided herein with signatures duly certified to said bank by the Secretary of this corporation and said bank is hereby authorized to honor and pay any and all checks so signed, including those drawn to the individual order of any officer or other person authorized to sign the same.”

“I hereby certify that the foregoing is a full, true and correct copy of the resolution adopted by the Board of Directors of the Hollywood Vogue, Inc., at a meeting of said Board regularly held on the 14th day of Feb. 1933, and that the signatures appearing on the reverse side of this card are the signatures of the persons duly authorized to withdraw funds of said corporation from said bank in accordance with the above resolution until such authority is revoked by giving written notice thereof to said bank signed by the officers duly authorized to sign checks as provided herein.

“Witness my hand and seal of the corporation

“[Seal] B. S. Duper, Secretary.”

On the other side of the card appeared the signatures of appellant as president, Frances M. Boon as vice president, and B. S. Duper as secretary, two of whose signatures were required on all checks.

On August 23, 1933, Mrs. Boon asked appellant if he would sign with her a check for $10 for her personal account. He replied that he would if she in turn would sign a check for a like amount payable to him. Two checks were then drawn, each for $10, one payable to appellant and the other to Frances M. Boon. Before presenting his check for payment appellant altered it so as to read $50 and cashed it at the bank. This admitted act of altering and cashing the check as altered, forms the basis for the charge of forgery of which appellant was found guilty.

As grounds for reversal of the order denying his motion for a new trial appellant urges: First, that he was president of the corporation and as such had authority to draw on the funds of the corporation on deposit in the bank; second, that the court erred in refusing his offer in evidence of a document which he characterized as the by–laws of the corporation; and, third, that the court erred in refusing to give to the jury four instructions requested by defendant.

The record does not necessarily support the assertion that appellant was elected president of the corporation. Without detailing the evidence on this point, it will suffice to say that there is sufficient evidence in the record to have justified the jury in concluding he never was elected president.

But conceding that appellant was at least de facto president, he with two other directors constituting a majority of the board executed a solemn declaration, which was filed with the bank, declaring that the funds of the corporation on deposit with the bank were to be drawn on only by checks signed by appellant and another officer. This written declaration in effect constituted a contract, binding on the bank and the corporation as well.

Section 470 of the Penal Code, so far as it affects the instant case, reads as follows: “Every person who, with intent to defraud, * * * alters * * * any * * * check * * * or * * * passes, * * * as true and genuine, any of the above–named * * * altered * * * matters, as above specified and described, knowing the same to be * * * altered * * * with intent to * * * defraud any person, * * * is guilty of forgery.” There can be no doubt but what appellant, when he raised the check, did so with the intent of making the bank believe it was originally signed and issued for $50, and with the purpose of inducing the bank to pay him $50 on the check. In doing this, he intentionally perpetrated a fraud on the bank, for the bank was liable to the corporation for any of its funds paid out other than on checks signed as authorized. The evidence clearly supports the charge of forgery.

As to the second point, the refusal to allow in evidence the so–called by–laws, it may first be observed that no proper foundation was laid for their introduction as the by–laws adopted at a legally called and held meeting of the directors and stockholders. Again, even if the purported by–laws did provide, as claimed by appellant, that the president had control over the funds of the corporation and therefore had the right to check on the bank deposit, the charge here involved his alteration of a check after it was signed and issued in accordance with the written authority agreed to by him and authorized by a majority of the board of directors. Under the circumstances here involved, the by–laws would be immaterial.

The third error charged is the general assertion that four instructions offered by defendant were refused, and that in doing so the court committed error. This general statement is wholly insufficient to justify the court in giving consideration to this assignment of error. We have, nevertheless, examined the instructions refused, as well as those given, and are satisfied there is no merit in this contention.

The order denying defendant's motion for a new trial is affirmed.

HAHN, Justice pro tem.

We concur: STEPHENS, P. J.; CRAIG, J.