In re Leuschen

This is an application for a writ of habeas corpus. The petitioner was charged, in a complaint filed in the Justice’s Court of Fullerton, Orange County, with violating section 476a of the Penal Code by issuing and passing six certain checks with the knowledge that he did not

This petition is based upon the contention that no reasonable or probable cause was shown, since the evidence is entirely insufficient to show any intent to defraud. It is well settled that the gist of the offense here charged is the fraudulent intent and there must be both an intent to, defraud and a present knowledge upon the part of the one issuing such a check that he has neither funds in nor credit with the bank upon which it is drawn to meet the same when presented (Pen. Code. sec. 476a; In re Scott, 85 Cal. App. 170 [ 259 Pac. 101 ]; People v. Owens, 57 Cal. App. 84 [ 206 Pac. 473 ]; People v. Frey, 165 Cal. 140 [ 131 Pac. 127 ]; People v. Routh, 182 Cal. 561 [ 189 Pac. 436 ]).

Two of the six checks involved herein were drawn on the First Bank of Highland under date of June 13, 1932, each check being for $1250. From the transcript of the evidence before us it appears that these checks were on that day at Highland, in San Bernardino County, delivered to someone whose identity does not appear. The person to whom they were made payable testified that they were handed to him in Orange County by a truck driver. There is an entire absence of any evidence to indicate that the person to whom they were handed in Highland was not an agent of the payee and, so far as the record shows, the jurisdiction of any offense in connection therewith was in San Bernardino County.

It further appears that the petitioner was and had long been in the business of shipping oranges; that for more than a year prior to this transaction he had been doing his banking business with the First Bank of Highland; that his average monthly deposits and withdrawals through that bank were approximately $250,000; that during the first sixteen days of June, 1932, his deposits in that bank amounted to $75,000; that it was his custom to wire to parties in the east to whom cars of oranges had been started and that these parties would then wire funds to the Highland Bank sufficient to pay the growers for the oranges in the cars then rolling; that it had long been the custom for the cashier of the Highland Bank at the close of a business

Aside from the matter of jurisdiction, we think this evidence is insufficient to establish an intent to defraud and that it fails to show knowledge on the part of the petitioner that he had neither funds in nor credit with this bank to meet the checks when presented.

The other four checks involved were drawn on the California Bank at Los Angeles. One was for $1201.20 dated July 25, 1932; one for $1978.50 dated July 26, 1932; One for $1,044.70 dated July 27, 1932; and one for $1304.17 dated August 2, 1932. It appears that during the month of July, 1932, the petitioner was buying oranges in Orange County and shipping the same to a man named Andrews in Los Angeles. Andrews opened an account for petitioner in petitioner’s name in this bank and from July 8, 1932, to July 29, 1932, a total of $31,933.59 was deposited therein. A signature card was sent by the bank to the petitioner at San Bernardino, who signed and returned the same and thereafter drew checks upon the account. Andrews testi

This credit arrangement was not ended even by notice to Andrews until July 27th and the evidence shows without dispute that three of these four checks were drawn and delivered prior to that time. Incidentally, one of those three checks was postdated and it is not disputed that the payee was told the money would not be there until “next week”. It further appears from the banker’s testimony that he returned at least two checks at a time when petitioner’s account was sufficient to cover them, his explanation being that while the bank had credited this account with certain items the same had not yet been collected. While the fourth check is dated August 2, 1932, petitioner’s bookkeeper testi

The respondent argues that at most the evidence discloses that the petitioner thought that he had a sufficient credit arrangement, but that this credit was with Andrews and not with the bank. It is difficult to see any merit in this contention. While the credit was arranged for by Andrews, it was extended by the bank, it was to be used by the petitioner, he was informed of its existence, and he used the same over a considerable period. The evidence discloses not only that the petitioner thought he had sufficient credit with this bank, but that he was justified in so thinking, and it is therefore entirely insufficient to show the criminal intent necessary under this statute or to show a present knowledge that he had not then sufficient credit with the bank to meet the checks in question.

While not properly a part of this case it may be observed that the evidence shows that a large part of the amounts represented by these checks was paid in cash shortly after they were issued, and that security was given for the remainder. Under these circumstances it is not without significance that these criminal charges were not brought until nearly a year had elapsed.

It appearing that the petitioner has been committed and held to answer without reasonable or probable cause it follows that he should be discharged and it is so ordered.

Marks, J., and Jennings, J., concurred.