People v. Bercovitz

Defendant was convicted of a felony and appeals from the judgment and from an order denying his motion for a new trial. The information was drawn under the provisions of section 476a of the Penal Code, and charged the defendant with having on or about the sixth day of February, 1911, at Bakersfield, California, with intent to defraud

Defendant, as one of his grounds for reversal, urges that the evidence does not sustain the verdict, because a post-dated check is not such an instrument as is intended to be described by section 476a of the Penal Code. The section mentioned reads as follows: “Every person who willfully, with intent to defraud, makes or draws, or utters, or delivers to another person any check or draft on a bank, banker, or depositary for the payment of money, knowing at the time of such making, drawing, uttering or delivery, that he has not sufficient funds in or credit with such bank, banker or depositary to meet such check or draft in full upon its presentation, is punishable by imprisonment in the state prison for not less than one year nor more than fourteen years. The word ‘credit’ as used herein shall be construed to be an arrangement or understanding with the bank or depositary for the payment of such check or draft.”

Defendant had a checking account with the bank of Bakersfield from November, 1910. At the close of business on February 4, 1911, which was a Saturday, his balance was only $23.62. No further deposit was ever made by him The ehéck was refused payment for want of funds. The evidence was ample to support the conclusion that defendant knew that he had not sufficient funds in or credit with said bank to meet such check or draft upon-its presentation, and that-he made, drew, and delivered the same to Cohn with the intent, to de

We are of the opinion that these facts show the offense defined by section 476a of the Penal Code, and that it is altogether immaterial that the check was dated February 6, 1911, when delivered during the evening of February 4,1911. Even if we assume in accord with appellant’s claim that, by reason of the fact that the instrument was post-dated it ivas not a “check” within the meaning of that word as used in section 476a of the Penal Code, which we do not concede, it was clearly a “draft,” the giving of which under such circumstances is likewise inhibited by the section, the language being “any check or draft,” and the variance between the allegation of the information, which set forth a true copy of the instrument, and the proof, is altogether immaterial. The offense defined by such section is the giving to another, with intent to defraud, “any check or draft on a bank, banker or depositary for the payment of money, knowing at the time . . . that he has not sufficient funds in or credit with such bank, banker or depositary to meet such check or draft in full upon its presentation.” There is nothing in the language used having the effect of excepting a case from the operation of the statute merely because the “check or draft” is post-dated. It is essential, of course, that there should be on the part - of one giving the check or draft both present knowledge of the insufficiency of funds and absence of credit with such bank, etc., to meet the cheek or draft in full upon its presentation, and an intent to defraud, but no reason is apparent why both of these elements may not exist as well in the case of a postdated check or draft as in the case of one bearing the date of its delivery.

We are not here concerned with a case where the fact of want of sufficient funds and credit is made known by the drawer to the person to whom he delivers the check or draft at the time of the delivery, and the payee chooses, with such knowledge, to rely on a promise or representation of the drawer that he will make such provision that the amount thereof will be paid on presentation. It may be that as to such a ease, a conviction could not properly be had under the section in question. In the case at bar, the evidence was ample

Complaint is made that the trial court erred in admitting evidence of other transactions involving the giving of other checks on the same bank by defendant to other parties, on both February 3, and 4, 1911. Clearly all of this evidence was admissible on the question of defendant’s knowledge at the time of the giving of the Cohn check of the condition of his account at the hank. In other respects, in so far as such evidence tended to show other offenses of a similar nature to the one here involved, it was also admissible under the rule applied in such cases as People v. Whalen, 154 Cal. 476 , [ 98 Pac. 194 ], and People v. McGlade, 139 Cal. 70 , [ 72 Pac. 600 ], to show guilty knowledge and intent to deceive in the matter of the Cohn check.

The judgment and order denying a new trial are affirmed.

Sloss, J., Shaw, J., Lorigan, J., Melvin, J., and Henshaw, J., concurred.