People v. Hollander

The appellant, Herman Hollander, was convicted by a jury of three violations of section 476a of the Penal Code, that is, of issuing fictitious cheeks. He appeals from the judgment of conviction.

The evidence shows that on October 2, 1957, the appellant purchased various articles from a department store in San Francisco. He offered, in payment for these articles, three checks drawn on the Valley National Bank of Phoenix, Arizona. At various times that day the department store cashier cashed three cheeks for appellant, one for $27, one for $84 and one for $73. The department store employees became suspicious and the matter was referred to the police. Upon being questioned, appellant admitted to the officers that he had drawn the checks and that he had no account in the bank on which the checks were drawn. His explanation was that, several years prior to 1957, he had an account in the Phoenix bank and had some of its checks in his possession, and that he needed some articles of clothing and passed the checks to secure them. His only defense was that at some indefinite time in the future he intended to make the checks good.

At the trial defendant did not testify. The prosecution, after producing the evidence above summarized, introduced protests and notices of protest on all three checks. These documents show that a notary public in the State of Arizona presented the cheeks to the Valley National Bank in Phoenix for payment, and that payment was refused on the ground that the maker of the checks had no account in the bank. Appellant objected to the introduction of these notices of

On this evidence the jury found appellant guilty on all three counts. The sole contention made on appeal is that the protests were erroneously admitted into evidence because not properly authenticated. Bach notice of protest bears the notary’s seal, but appellant urges that this was not sufficient authentication.

The point is without merit. Section 476a, subdivision (c) of the Penal Code provides that a notice of protest “shall be admissible as proof of presentation, nonpayment and protest and shall be presumptive evidence of knowledge of insufficiency of funds” in the bank on which the protested check is drawn. Section 8208 of the Government Code provides that: “The protest of a notary public, under his hand and official seal, of a bill of exchange or promissory note for nonacceptance or nonpayment, specifying:

“ (a) the time and place of presentment.

“(b) the fact that presentment was made and the manner thereof.

“(e) the cause or reason for protesting the bill.

“(d) the demand made and the answer given, if any, or the fact that the drawee or acceptor could not be found, is prima facie evidence of the facts recited therein.”

Appellant urges, however, that the notices of protest here admitted into evidence over his objections were not admissible because not properly authenticated as required by section 1940 of the Code of Civil Procedure, the section relating to the method of proving a private writing. Appellant also urges that this deficiency of proof cannot be supplied by the judicial notice provisions of section 1875 of the Code of Civil Procedure. He points out that under that section California courts take judicial notice of the seals of all courts of this state and of the United States, and of the official signatures and seals of the principal officers of the government, legislative, executive and judicial, of this state and of the United States. Thus, by failing to so provide, the courts of this state may not take judicial notice of the seals of out-of-state courts or of the seals of office of the legislative, executive or judicial officers of states other than California. It is, therefore, argued that the courts of this state cannot, logically, take judicial notice of the authenticity of the seal of an out-of-state notary.

The difficulty with this argument is that the Legislature has provided to the contrary. Subdivision 7 of section 1875

As Wigmore points out, the rule is of long standing and has been so seldom disputed in either civil or criminal cases that there are few precedents. We have, however, at least one case where the court has held that out-of-state protests, similar to those here involved, are admissible in a criminal case. In People v. Bullock, 123 Cal.App. 299 [ 11 P.2d 441 ], on appeal it was contended that such out-of-state protests were not properly authenticated. The court stated (p. 303): “The defendant objects that the notices of protest were not