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District Court of Appeal, Fourth District, California.


Cr. 765.

Decided: March 18, 1952

Edgar G. Langford, San Diego, for appellant. Edmund G. Brown, Atty. Gen., Dan Kaufmann, Deputy Atty. Gen., for respondent.

The defendant was charged with issuing two checks in violation of section 476a of the Penal Code. In the first count it was charged that on February 9, 1951, he fraudulently issued a check for $992.68 to one Lewis, drawn upon the general account of William P. Osterhout, Inc. in a certain bank, knowing that there was not sufficient funds in this account or credit with said bank to meet the check. In a second count he was charged with having fraudulently issued a similar check for $1480 to Joseph Bacorn. A jury found him guilty as charged in Count I, but disagreed on a verdict with respect to Count II. He was sentenced on Count I, and has appealed from the judgment and from an order denying his motion for a new trial.

The defendant was one of the organizers of William P. Osterhout, Inc., which was engaged in the business of building houses although no permission to issue stock had been granted and no shares had been issued. A Mrs. Winn was treasurer of the corporation and worked in the office, and the defendant was secretary and general manager, having charge of all its affairs. All checks were to be signed by him and Mrs. Winn, and none could be given out except by his direction. The defendant made collections, made the deposits in the bank, and kept possession of the bank statements. The check involved in the first count was issued at the direction of the defendant; the money in that account was insufficient to meet this check; no credit arrangements had been made with the bank; and the check was never paid.

The defendant contends that the evidence is insufficient to sustain the judgment. It is argued that on February 9, 1951, this corporation had $1577 in this bank, of which $534 was in the general account, $943 in the payroll account, and $100 in the tax account; that Mrs. Winn was ‘the only authorized’ manager of the bank account and the defendant had no reason to know that there was less than $992.68 in the general account on February 9; that during the preceding days of February Mrs. Winn had taken it upon herself to deposit certain funds in the payroll account instead of the general account; and that Mrs. Winn should have deposited a large sum in the company bank accounts after the delivery of the check to Mr. Lewis.

The fact that the corporation had some money in its payroll and tax accounts is immaterial as those funds were not available for the payment of this check, which was drawn on the general account by direction of the defendant. Disregarding conflicts, it appears from the evidence that the defendant had charge of the finances of this corporation; that he received the monies, made the deposits in the bank, and had personal possession of such records; that a few days before February 5, he told Mr. Lewis that the funds in the bank were insufficient to pay the entire amount due him; and that at his direction a check for $300 was given to Mr. Lewis on February 5, and he was told to come back later for the balance. About an hour before the check was given to Mr. Lewis on the morning of February 9, the defendant personally gave a check for $1480 to Mr. Bacorn, telling him at the time that there was not enough money in the bank to take care of the check, and that they would make the check good as soon as they were able to do so. There was not enough money in the bank to cover the Lewis check, irrespective of the $1480 check just given to another. The defendant knew what collections and deposits had been made since a few days before February 5, and since he was personally handling the bank account he must have known that the funds in the bank were not sufficient to take care of the check. The evidence, with the reasonable inferences therefrom, is sufficient to support the judgment of conviction.

The only other point raised is that the court committed prejudicial error in failing to answer a question as to the law, asked by one of the jurors. After the jury had retired to deliberate upon a verdict it returned to the court room. When the court asked whether it had reached a verdict one juror relied that they had agreed on one count, but were hopelessly deadlocked on the other. A discussion then took place as to how many ballots had been taken and as to whether the jurors felt that it was ‘worthwhile to try longer to reach a verdict.’ During this discussion it developed that the jury had agreed upon the first count, and that one juror felt that it was possible to reach an agreement on the second count if they spent more time on it. The court ordered the jury returned to the jury room ‘to further deliberate upon a verdict upon the other count on which you have not agreed.’ One juror then asked to have the instruction read on whether the crime of issuing insufficient checks included the crime of intent to deceive and defraud. The court then reread four instructions which had been previously given on the question of intent to defraud, as applicable to this case. One of the jurors then asked whether an intent to defraud is shown where a person giving a check informs the payee, at the same time, that the funds are insufficient to pay the check. The court replied that this was a question for the jury to determine from a consideration of all of the facts and circumstances of the case. The jury was then sent out, and shortly thereafter returned a verdict of guilty on the first count, without agreeing as to the second count.

The defendant argues that the question asked by this juror called for an instruction as to a point of law; that the court should have instructed the jury that the evidence is insufficient to show an intent to defraud where the maker of a check at the time of delivery makes known to the payee that there are no funds in the bank to meet it; and that the failure to do so was prejudicial. This contention would be more persuasive had the defendant been convicted on the second count, but no prejudice here appears. This entire matter took place in a discussion relating to the second count after the jury had reached its verdict on the first count, having been fully instructed on the question of intent. There is no evidence in the record that anything was said about the insufficiency of the funds in the bank at the time the check was delivered to Mr. Lewis, and there was no evidence requiring such an instruction in connection with the first count. The defendant himself testified that at the time he signed and directed the delivery of the check involved in the first count he did not say anything to Mr. Lewis about the check, or discuss it with him in any way.

The judgment and order are affirmed.

BARNARD, Presiding Justice.

GRIFFIN and MUSSELL, JJ., concur.