Reset A A Font size: Print

District Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas E. MANLEY, Defendant and Appellant.

Cr. 2890.

Decided: January 30, 1959

Timothy W. O'Brien, Public Defender, Ukiah, for appellant. Edmund G. Brown, Atty. Gen., by G. A. Strader, Deputy Atty. Gen., for respondent.

This is an appeal from the judgment entered after a jury found the defendant Thomas E. Manley guilty of a violation of section 470 of the Penal Code (forgery) and from an order of the court denying a motion for a new trial.

The appellant Thomas E. Manley was employed as a reporter for the ‘Ukiah News' in Ukiah from mid-November, 1957, until about the 27th day of December, 1957. During this period the appellant received five or six weekly paychecks. These checks were made on a check-writing machine and a typewriter and signed by the publisher of the newspaper, Mr. Robert F. Gerber.

On December 29, 1957, the appellant cashed a check payable to himself and purportedly signed by Robert F. Gerber. Mr. Gerber testified that the signature was a forgery and that he had not authorized any person to sign his name to the check. A genuine paycheck issued to the appellant and signed by Mr. Gerber was introduced in evidence for comparison.

The forged check was cashed by a Mr. Virgil Alsup, the owner of a bar or tavern in Ukiah known as the Forest Club. On the evening of December 29, 1957, the appellant entered the bar and after ordering and paying for a drink asked Mr. Alsup if he would cash the check which was payable to himself and showed some identification. In explanation of his request that Mr. Alsup cash the check, the appellant stated that he worked for the newspaper and that he had picked up his check late and there was no place where he could cash it during the holiday weekend. The appellant endorsed the check in Mr. Alsup's presence and received cash in the sum of $94; the check was made out for $94.43. The check was later returned to the bank by Mr. Gerber as a forgery.

The defense was an alibi. Appellant claimed that he was in Santa Rosa during the evening of the 28th and 29th. A bartender testified that he saw appellant in his bar about 9:30 a. m. on December 29, and one Oscar Leezy saw him about 4:30 a. m. the same morning. A third witness, who it was shown had been convicted of a felony, testified he was with the appellant in Santa Rosa from 10:00 a. m., December 29, until sometime the following morning.

Appellant also claimed that he sent a telegram to Gerber from Santa Rosa on December 29, 1957. The Ukiah manager of Western Union testified that the code numbers on the telegram indicated that it was phoned to the Oakland office from Ukiah at 12:20 a. m., December 30, 1957.

A report of the Bureau of Criminal Identification and Investigation was introduced in evidence by the defense. This report recited that Gerber did not write the check appellant was accused of uttering. It also stated that the examiner could not conclude that appellant had written the face of the check.

During the course of the trial a juror was excused because of illness. The court instead of dismissing the jury accepted a stipulation and continued the trial with 11 jurors. The record discloses that the following occurred: ‘Mr. O'Brien: Your Honor, I have reviewed this matter with my client. He is aware of his rights. He is willing to waive the right to a trial by twelve jurors and at this time, we stipulate the matter may be continued and be decided by the jury of eleven people. Mr. Irish: I will join in that stipulation, your Honor. The Court: All right. Let the record so show. You may proceed.’

Appellant's first contention is that the evidence is insufficient to support the judgment of conviction. He argues that an endorser can not have the required intent to defraud since under the provisions of section 3147 of the Civil Code an endorser warrants that he will pay the instrument if dishonored. Appellant argues further that in a case where there is no evidence that the accused wrote the check himself he can not have the required intent to defraud since the obligation to repay is inconsistent with such intent.

There is no merit in this contention. The fact the appellant may be civilly liable would not prevent the drawing of an inference of intent to defraud. Every thief is civilly liable. If appellant knew the check was not a valid instrument and if he did not inform Mr. Alsup of that fact when he negotiated it, the required intent existed. By negotiating it appellant impliedly warranted that it was valid. Mr. Alsup in cashing the check would expect that he could go to the bank and recover the money he disbursed for the check. Once this expectation proved to be false, he was defrauded. The fact that appellant may have had an undisclosed intent to repay Mr. Alsup at some future date does not change the result since the required intent to defraud would exist when he induced Mr. Alsup to cash a check which was worthless.

Appellant was charged with forging the check and with uttering it, knowing that it was forged, with intent to defraud. The evidence is ample to sustain the conviction. Whether or not appellant wrote the face of the check the record shows that it was not signed by Mr. Gerber so when appellant presented the check to Mr. Alsup, falsely representing that he had received it from the Ukiah News, and then by endorsing the check received the amount thereof, he was guilty of the offense charged.

Upon the oral argument this court expressed doubt as to whether the judgment entered upon a verdict by a jury of only 11 jurors could be sustained and requested respective counsel to file briefs upon that issue.

Appellant contends that the judgment must be reversed because the appellant did not personally and expressly consent to the trial proceeding with 11 jurors. In view of the authorities hereinafter cited, we agree with this contention.

Article I, Sec. 7, of the Constitution of the State of California provides:

‘The right of trial by jury shall be secured to all, and remain inviolate; but in civil actions three-fourths of the jury may render a verdict. A trial by jury may be waived in all criminal cases, by the consent of both parties, expressed in open court by the defendant and his counsel, and in civil actions by the consent of the parties, signified in such manner as may be prescribed by law. In civil actions and cases of misdemeanor, the jury may consist of twelve or of any number less than twelve upon which the parties may agree in open court.’

In the event a juror becomes ill, Section 1123 of the Penal Code provides:

‘If before the jury has returned its verdict into court, a juror becomes sick or upon other good cause shown to the court is found to be unable to perform his duty, the court may order him to be discharged. If any alternate jurors have been selected as provided by law, one of them shall then be designated by the court to take the place of the juror so discharged. If, after all alternate jurors have been made regular jurors or if there be no alternate juror, a juror becomes sick or otherwise unable to perform his duty and has been discharged by the court as provided herein, the jury shall be discharged and a new jury then or afterwards impaneled, and the cause may be again tried.’

It has been held that a defendant in a criminal case may agree to proceed with less than 12 jurors. People v. Clark, 24 Cal.App.2d 302, 74 P.2d 1070; People v. Williams, 128 Cal.App.2d 458, 275 P.2d 513. However, the cited cases involved situations in which during the course of the trial one juror became ill and the trial was continued with the remaining 11 jurors, but in each case the defendant personally waived the requirement of 12 jurors in open court.

Respondent argues that the cited cases did not involve the issue of whether or not such personal waiver by the defendant is required under the provisions of the California Constitution, Article I, Sec. 7. Respondent states: ‘The constitutional provision above cited provides that the right of trial by jury shall be secured to all and remain inviolate. The constitutional provision further provides that ‘[a] trial by jury may be waived in all criminal cases, by the consent of both parties, expressed in open court by the defendant and his counsel * * *’ It is the respondent's contention that the defendant was accorded a trial by jury in the present case, although the number of jurors was less than the usual number of 12. Therefore, respondent further contends that the requirement of the Constitution with respect to personal waiver by the defendant expressed in open court does not apply and that the excusing of one juror during the course of the trial was merely a matter of procedure upon which counsel for the defendant was authorized to stipulate.'

Respondent concedes, as indeed it must, that appellant did not personally ‘by the use of language’ consent that his trial proceed with 11 jurors, but respondent argues that this was merely an irregularity of procedure. We cannot agree. In the recent case of People v. Barnum, 147 Cal.App.2d 803 at page 808, 305 P.2d 986, at page 989 (hearing denied), the court said:

‘Article I, Section 7 of the state constitution provides, in part, that: ‘A trial by jury may be waived in all criminal cases, by the consent of both parties, expressed in open court by the defendant and his counsel’. It has been held repeatedly that the consent of the defendant must be expressed by him personally and may not be implied. People v. Garcia, 98 Cal.App. 702, 277 P. 747; People v. Wilkerson, 99 Cal.App. 123, 278 P. 466; People v. Barba, 100 Cal.App. 557, 280 P. 549; People v. Spinato, 100 Cal.App. 600, 280 P. 691; People v. Wyatt, 101 Cal.App. 396, 281 P. 629; People v. Woods, 126 Cal.App. 158, 14 P.2d 313; People v. Washington, 95 Cal.App.2d 454, 213 P.2d 70; People v. Shannon, 110 Cal.App.2d 153, 241 P.2d 1007; People v. Pechar, 130 Cal.App.2d 616, 279 P.2d 570; People v. Benjamin, 140 Cal.App.2d 703, 295 P.2d 477. In each of these cases in which a petition for hearing before the Supreme Court has been filed such petition has been denied. In People v. Pechar, 130 Cal.App.2d 616, 619, 279 P.2d 570, 572, the court held that the consent of a defendant waiving a trial by jury must be expressed ‘by the use of language’. In the case at bar, the attorney general, on behalf of respondent, urges the same contention which he urged in the cited case, i.e., that consent may be ‘expressed’ by conduct as well as by words, and asks this court to reappraise the rule. In the light of the consistent adherence to this rule, over a period of 27 years, by the appellate courts of this state, and the refusal of the Supreme Court to grant a hearing in any case applying it, we do not feel that such a reappraisal is within our province.'

We think it is clear that the jury to which a defendant in a criminal case is entitled under Article I, sec. 7, of our state Constitution is a jury of 12 members. A jury can only be waived ‘by the consent of both parties, expressed in open court by the defendant and his counsel.’ In order for a case to be tried with less than 12 jurors, the consent to such reduced number must be expressed in open court by the defendant. We believe there is no logical basis for a distinction between waiving a trial by jury and consenting to a trial by a jury of less than 12 members. For as was said by the United States Supreme Court in Patton v. United States, 281 U.S. 276, at page 290, 50 S.Ct. 253, 255, 74 L.Ed. 854: ‘It follows that we must reject in limine the distinction sought to be made between the effect of a complete waiver of a jury and consent to be tried by a less number than twelve, and must treat both forms of waiver as in substance amounting to the same thing.’

As hereinbefore set forth, appellant did not personally ‘by the use of language’ consent that his trial proceed with 11 jurors when a juror became ill. It would have been a simple matter for the court to have asked appellant if he did so consent and have the record show his expressed consent. The discussions hereinbefore cited have reiterated the rule that the defendant's consent must be expressed by him personally in open court. As stated in People v. Pechar, 130 Cal.App.2d 616, at page 619, 279 P.2d 570, at page 572:

‘Having in mind the sanctity of the right to trial by jury in criminal cases and the evident purpose of the constitutional provision that no defendant should be deprived of that right unless he unequivocally and personally expressed his consent to such waiver in open court, we have concluded that such waiver must be expressed by the defendant in the manner which can involve no question of misinterpretation, doubt or uncertainty at the time or afterwards, i.e., that such waiver must be by the use of language.’

We conclude that because appellant did not personally consent to proceeding with 11 jurors the judgment and order must be reversed.

No other points raised require discussion.

The judgment and order are reversed.

SCHOTTKY, Justice.

VAN DYKE, P. J., and PEEK, J., concur.