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District Court of Appeal, Second District, Division 1, California.


Cr. 4350.

Decided: August 04, 1949

Robert E. Austin, John N. Helmick and A. K. Phelps, Los Angeles, for appellant. Fred N. Howser, Attorney General, and William E. James, Deputy Attorney General, for respondent.

By information containing two counts, defendant was charged with violations of section 476a of the Penal Code, to-wit: that he drew two checks in favor of Robert Schultz for $1955.20 and $3504.32 upon the Huntington Park Bank knowing that he had not sufficient funds in or credit with said bank to meet them.

Defendant waived a jury trial and upon stipulation the People's case was submitted on the transcript of the preliminary hearing. Defendant testified in his own behalf and was found guilty, as charged. The court denied his application for probation, pronounced judgment and sentenced him to State prison, the sentences on the two counts to run consecutively.

Defendant appeals from the judgment of conviction, urging that the evidence is insufficient to support it because of lack of proof of a criminal intent on his part.

The two checks in question were drawn by appellant on March 25 and 26, 1948, respectively, payable to the order of Robert Schultz, the owner and operator of R. S. Engineering Company, in payment for 3/434″ plywood which was delivered at the time the checks were given. Neither check was honored.

Appellant and Mr. Schultz had some prior business transactions involving the sale of plywood. One particular sale was paid for by check dated March 15, 1948, for $3213.83, which was dishonored by the bank. In order to make good on this check, on March 22, 1948, appellant withdrew $1800 in cash from the bank and gave it to Mr. Schultz together with a check for the balance of $1413.82. At the time he gave this check appellant did not have sufficient funds in the bank to cover it, and testified that he told Mr. Schultz that he ‘would need a few days' until a check from some Texas people had cleared.

Mr. Schultz testified he got his money on the $1413.82 check before he received the two checks which form the basis of the instant prosecution. In answer to the question: ‘Isn't it a fact, Mr. Schultz, that you held those checks up to wait for Mr. Wallin to deliver this merchandise to the Fruehauf Trailer Company and get their check to deposit in his bank to meet these checks as they came?’ the witness testified: ‘No, sir. When those checks were given to me, the man (Mr. Wallin) told me that the checks were absolutely good.’ He also stated that he later received $2400 in part payment of the two checks.

Appellant testified he had been engaged in the wholesale builders business for 25 years, and started doing business with Mr. Schultz in March of 1948; that on March 22nd his men worked on the plywood getting it ready, and on March 25th it was ready for loading and delivery to the Fruehauf Trailer Company; that there was a delay on the Fruehauf check due to the fact the plywood did not pass their specifications, and the witness had to get rid of it in other quarters.

On cross-examination, appellant testified that when he gave the two checks on March 25 and 26, he knew he did not have money enough in the bank to cover them. When he was asked ‘Did you have any understanding with Mr. Schultz that the check (of March 25th) was to be held?’ he replied: ‘He asked me where the plywood was sold. I said Fruehauf Trailer Company. He said very well, to make it thirty days. I said, ‘No, not in this case. They will give a check right away when the plywood is delivered.’ So I said ‘By the time that that check is in there, my check will be okay.’ He said, ‘Okay.’ * * *

‘Q. You mean that you discussed that with Mr. Schultz and he said he would hold the checks until you got the check from these Texas people to cover? A. That he would hold them, yes, definitely.’

The assistant cashier of the bank on which the checks were drawn testified that appellant's balance at the close of business on March 24th was $24.84; on March 25th was $1.44 and on March 26th was 44 cents.

It is appellant's contention that when Mr. Schultz took the two checks here in question, he had in his possession the unpaid check for $1413 dated March 22nd, knowing that there were insufficient funds in the bank to pay it, therefore that no intent to defraud on his part was established.

An examination of the record does not sustain this contention. Mr. Schultz on cross-examination stated he had received the money on the $1413 check before he took the two checks of March 25 and 26; further, that appellant told him these two checks were ‘absolutely good.’

As stated in People v. Wellington, 85 Cal.App.2d 310, 313, 193 P.2d 30, 32:

‘As to the essential elements of the offense denounced by section 476a charged in Count I, they are: (1) The intent to defraud, (2) the drawing, (3) of a check, (4) upon a bank, (5) a lack of sufficient funds or credit with the drawee at the time the check is made, and (6) knowledge on the part of the accused of such lack of funds or credit.

‘That the prosecution proved the last five of the foregoing elements is conceded. The intent to defraud, which is the gist of the offense, must in most, if not in all cases, be proven by the circumstances surrounding the transaction in question. While in the case at bar the facts concerning the elements of intent to defraud are in sharp conflict, we are persuaded that the record contains sufficient proof thereof, not only to establish the corpus delicti but to support the decision of the court.’

Likewise in the case here under review, the testimony as to the circumstances surrounding the issuance of the checks is in direct conflict. Nevertheless, there is present in the record sufficient evidence of intent to defraud to sustain the judgment of conviction.

In answer to the same question it was stated in People v. Payton, 6 Cal.App.2d 198, 199, 44 P.2d 376, as follows:

‘Although there is a direct conflict in the evidence, it is ample to justify the inference of guilt. ‘The findings of a jury upon disputable questions of fact, if supported by direct evidence or inferences, or both, must be given full faith and credit. It is only where, as a matter of law, there is no legal evidence supporting the charge that a reviewing court may disturb a verdict. The rule, upon an appeal in a criminal case, is that the court 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 or not the guilt of the defendant is deducible therefrom. The question for the court to pass upon is whether there were facts before the jury to justify the inference of guilt.’ People v. Deysher, 2 Cal.2d 141, 40 P.2d 259, 262.'

The difficulty in this case is similar to that which we considered in People v. Stinchocomb, 92 Cal.App.2d 741, 208 P.2d 396. The ‘trial’ of this defendant was not a trial in the sense in which lawyers and judges understand the word. A jury was waived, and the judge became the final arbiter of the fact. But none of the witnesses for the People were sworn or examined by him or in his presence.

The People's case was submitted upon the reporter's transcript of the testimony taken at the preliminary examination in the Municipal Court. This was pursuant to stipulation by counsel for the People and for the defendant, with the right reserved by the defendant to put on a defense. Thereupon, the trial was continued for eight days.

When the case was resumed, and Court made the following statement:

‘I will say for the purpose of the record, gentlemen, I have very carefully read and considered the reporter's transcript of the preliminary examination.’

Then the defendant was sworn and examined in the presence of the court, found guilty, denied probation because of a prior record, and given two consecutive sentences in the penitentiary.

The fundamental concept in American jurisprudence of a trial in a criminal case is a proceeding held publicly in a court room. There the case goes forward, presided over by a judge, with dignity, fairness and dispatch. And due process of law is implicit in the proceeding from its beginning to its end.

Formerly in this state it was essential that there should be a jury impaneled to hear the evidence, and to determine the guilt or innocence of the accused. Now, the right of trial by jury may be waived, but with certain express formalities. Cal.Const.Art. I, Sec. 7.

The right of a defendant to be represented by counsel has always been zealously guarded by our courts. Art. I, Sec. 13, Cal.Const.; Secs. 858 and 987, Penal Code. Denial of that right has been held to be denial of due process of law. It may be waived by a defendant, but the record must show that the defendant understood what he was doing and consented and agreed to the waiver.

The right of a defendant in a criminal case to be confronted by the witnesses against him is equally as important, and a denial of it is likewise a denial of due process of law. There are occasions when testimony take before other forums, and even by deposition, may be used against a defendant in a criminal case; but only when it has been satisfactorily shown to the court that such witnesses are dead or insane, or cannot with due diligence be found within the state. Penal Code, sec. 686.

All through the case at bar the defendant has contended that the payee of the checks knew they were to be held and not presented for collection until the plywood for which they were given in payment was paid for by a customer of defendant's. If this were true the essential element of intent in the crime would have been lacking and the defendant not guilty.

This issue, then, was decided upon conflicting testimony of two persons only—the defendant and the prosecuting witness. Upon cross-examination of the prosecuting witness at the preliminary examination, the following occurred:

‘Q. By Mr. Austin: Now, did you have any talk with Mr. Wallin about who was buying this plywood from him? A. I was aware of where the material was going, yes.

‘Q. And you also knew that he was expecting to pay you from the money he received from the plywood? A. I didn't ask him.

‘Q. Now, you have received most of the money that these checks call for, have you not, Mr. Schultz? A. No, sir.

‘Q. Mr. Schultz, how much have you received on account of these checks? A. I have received two checks for $1,200 directly against these, which comes to $2,400 and some odd dollars, I believe.

‘Q. Is that all the money that you have received? A. That is all of the money that I have received from the plywood sales.

‘Q. I would like to show you the check here dated April 15th, 1948, drawn on the Citizens National Bank of Bellflower, payable to the California Wholesale Supply Company, for $1,204.31, signed by the Seaboard Lumber Company, and I would like to ask you if that is one of the checks that you say you received? A. That is right; that is one of them.

‘Q. On account? A. That is right.

‘Mr. Antram: What is the date of that check?

‘The Court: April 15th.

‘Q. By Mr. Austin: And this is your endorsement here on the back of that, isn't it? A. That is it.

‘Mr. Antram: I object to that on the ground that it is immaterial.

‘The Court: What difference does it make; it is immaterial as to any payoff that is made after the checks have been issued. It doesn't make any difference whether they came around and made it good or not—that is at the preliminary hearing, anyway. It might be material later on for some other reason, but certainly it doesn't have any place here.

‘Mr. Austin: We are hoping, your Honor, that the evidence will convince the Court that the transaction here was one in which the California Wholesale Supply Company expected to transfer this property and get the pay for it out of the proceeds of the sale they were making.

‘The Court: Objection to this evidence is sustained.’ (Emphasis added.)

We think if this witness had been sworn and examined in the Superior Court, objections to this testimony would not have been sustained.

The witness' reply that he did not ask, when he was questioned as to whether the defendant was expecting to pay for the plywood from money received from the ultimate purchaser, is evasive. Whether there was a agreement between these two men that the checks should be held until the defendant was paid for the plywood was material and vital to his case. It was error for the Superior Court, pro hac vice to adopt the ruling of the judge of the Municipal Court sustaining objections to this line of testimony.

Who can say that had the judge of the Superior Court personally listened to this witness, observed his appearance and demeanor upon the witness stand, and weighed his testimony along with the other testimony in the case, there might not have been a different result? And who can say that had the judge had the benefit of a personal appraisal of this witness, the penalty of two consecutive sentences in the penitentiary might not have been ameliorated? Or that, possibly, with a different ‘feel’ of the case the judge might have been constrained to temper justice with mercy and mete out a county jail sentence?

We question whether any trier of fact can abstract the proper weight and value to give testimony from a cold, typewritten transcript of it, and without seeing and listening to witnesses themselves. As has oft been repeated, it is for this reason that our Constitution provides that appellate courts are not authorized to weigh evidence, except where, on its face, it may justly be held that it is insufficient to support the ultimate issue involved. In such cases it is not a review of a question of fact, but one purely of law. People v. Haydon, 18 Cal.App. 543, 554, 123 P. 1102, 1114; Cal.Const. Art. VI, Sec. 4.

In consonance with the spirit and intent of this constitutional provision, the legislature has ordained that the jury, or when a jury is waived, the trial judge is the exclusive judge of the credibility of witnesses. Code Civ.Proc. sec. 1847. The cited section provides that while a witness is presumed to speak the truth, this presumption may be repelled in part by the manner in which he testifies, or by the character of his testimony. How can the trier of fact judge of the character of a witness' testimony or of his manner of testifying, his candor or lack of candor, or his demeanor upon the stand when the witness is not before him? And, of more import even, how can a reviewing tribunal apply the substantial evidence rule and affirm a judgment under such circumstances as this?

The argument may be made that submission of cases upon a transcript tends to dispatch the business of the trial courts in criminal cases. But, as we said in the Stinchcomb case, supra, such galloping administration of criminal law is wrong when human rights and personal liberty are at stake.

In the Stinchcomb case we held that the right to be confronted by the witnesses against him may be waived when the record shows that the defendant personally consented and agreed to it. Upon further reflection and consideration, we have come to the conclusion that if there is to be a trial, the language of Sec. 686 of the Penal Code is mandatory, and that the defendant must be confronted with the witnesses against him, the only exceptions to the rule being those set forth in the code section. These are only where it has been satisfactorily shown to the court that such witnesses are dead, or insane, or cannot with due diligence be found within the state.

The judgment is reversed, and cause is remanded for a new trial.

DRAPEAU, Justice.

WHITE, P. J., and DORAN, J., concur.

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