People v. Luizzi

Defendant was convicted by a jury of four counts of forgery, all alleged to have occurred on the same day and involving the same amount. Each count charges forgery and uttering in violation of section 470, Penal Code. From the judgment of conviction and order denying his motion for new trial defendant appeals. He contends that the People failed to prove “the elements of the crime of forgery as specifically alleged in the information,” that the deputy district attorney committed prejudicial error in cross-examination, that Officer Woodring was biased and prejudiced against him, and that there is insufficient evidence to support the jury’s verdicts.

“Where there is substantial evidence in support of

All checks (Exs. 1 through 4) were dated and passed in various food markets the same day, August 28, 1959; each bore the name of Richard B. Bardwil as the drawer, Joseph G. Carr, as the payee, and on the reverse side the endorsement 11 Joseph G. Carr 4731 Waring Ave LA, Calif”; and each cheek was drawn for the sum of $88.78. Bardwil is an attorney at law with offices in the same building as that of defendant ; the four checks (Exs. 1, 2, 3 and 4) are the check forms used by Bardwil in his law business; he is the only one authorized to sign his name to checks and the name “Richard B. Bardwil” on the face of each check is neither his signature nor in his handwriting and was not authorized by him; during the time in question Bardwil was away from his office attending the American Bar Convention and upon his return he was notified by his secretary and an associate that his check book was missing; Bardwil is acquainted with defendant, having represented him in a personal injury matter about three weeks before leaving for the convention; and defendant was in Bardwil’s office several times during that period. It was established through an examiner of questioned documents and handwriting expert, from a handwritten exemplar (Ex. 5) which he asked for and received from the defendant and which defendant wrote in his presence, that the name “Joseph G. Carr” and the address on the back of each check were written by the same person who wrote Exhibit 5. In addition a second handwriting expert testified that in his opinion the endorsement on the reverse side of each check (Exs. 1, 2, 3 and 4), “Joseph G. Carr 4731 Waring Ave LA, Calif” was written by defendant who also wrote Exhibit 5.

In connection with Count I, Jack Goodman, manager of the Star Market in Monterey Park, identified defendant as the man who presented Exhibit 1 for payment and who represented himself as Joseph G. Carr, showing Goodman as identification a temporary driver’s permit. Although Goodman authorized the check for encashment, he also directed Hatch,

on the check “KZ7051.” Hatch described the automobile as about a 1958 Cadillac, pink convertible, with white top, which description Goodman also recorded on the check. Hatch identified the man as the defendant. The cheek was dishonored by the bank.

As to Count II, Robert Sorenson, owner of Bob’s Pine Poods in Rosemead, identified defendant as the man who early in the morning of August 28th or August 29th brought a cheek to him inside the front door of the market. Defendant asked him whom he should see to get a check “o.k.’d.” Sorenson “o.k.’d” it with a small “R” and returned it to defendant; Harriet Tiner, a clerk, cashed the same and identified the man who presented it as the defendant. It was returned by the bank dishonored.

Relative to Count III, Exhibit 3 was presented to Rudolph Jaques, assistant cashier at the Cracker Barrel Market for encashment; he could not identify the person who presented the same but asked him for identification in the form of a driver’s license and wrote on the back of the check “Temp. D/L” (temporary driver’s license), its number and his own initials; the check carried the endorsement of “Joseph G. Carr” and the Waring Avenue address on the reverse side.

Concerning Count IV, Margaret Burkhart, an employee of Jim’s Market in Montebello, was presented with Exhibit 4; she called the manager who “o.k.’d” the check; she cashed it and gave the man, whom she could not identify, $11.75 worth of groceries and the balance in cash, which she noted on the check with her initials.

At the time of his arrest, defendant told Officer Woodring at the former’s office that he borrowed a Cadillac from a lady friend and it was not pink and white but red and white and he had used it in Monterey Park on August 28.

Defendant offered his own testimony and that of his wife and several others in an alibi defense. He testified that on August 28 he was in an all-day meeting with his business partners Carl Guerriero, Jack Thorpe, Matthew Pain and Nick Bufalino; denied that he had ever told Officer Woodring that a girl friend had loaned him her pink Cadillac or that he had ever borrowed a Cadillac for any purpose, that he had

Incident to his contention that the evidence is insufficient to support the jury’s verdicts is appellant’s primary claim that the evidence does not support the offense of forgery of a check as alleged in each count, and forgery of endorsement is not charged therein.

Bach count of the information alleges that defendant on August 28, 1959, “did willfully, unlawfully, fraudulently and feloniously make, alter, forge and counterfeit a certain check and order in writing for the payment of money,” in the sum of $88.78 and “did then and there utter, publish and pass the same, knowing that said check was false, altered, forged and counterfeited, with intent then and there to cheat and defraud” certain named persons, including Richard B. Bardwil and the Bank of America.

The crime of forgery as denounced by statute (Pen. Code, §470) consists of either of two distinct acts — the fraudulent making of an instrument, such as a false writing thereof, or the uttering of a spurious instrument by passing the same as genuine with knowledge of its falsity (People v. Lucas, 67 Cal.App. 452 [ 227 P. 709 ]); and although both acts may be alleged in the conjunctive in the same count in the language of the statute, the offense does not require the commission of both — it is complete when one either falsely makes a document without authority or passes such a document with intent to defraud (People v. Pounds, 168 Cal.App.2d 756 [ 336 P.2d 219 ] ; People v. McKenna, 11 Cal.2d 327 [ 79 P.2d 1065 ] ; People v. Morgan, 140 Cal.App.2d 796 [ 296 P.2d 75 ] ; People v. Murrie, 168 Cal.App.2d 770 [ 336 P.2d 559 ]), and the performance of one or both of these acts with reference to the same instrument constitutes but a single offense of forgery. (People v. Frank, 28 Cal. 507 .)

Citing People v. Thornburgh (1906), 4 Cal.App. 38 [ 87 P. 234 ] ; People v. Cole (1900), 130 Cal. 13 [ 62 P. 274 ] ; People v. Johnson (1907), 7 Cal.App. 127 [ 93 P. 1042 ]; and People v. Feldman, 171 Cal.App.2d 15 [ 339 P.2d 888 ], appellant argues that an endorsement is no part of a check, that the evidence falls short of forgery of a check as charged and that

The offenses of forgery of endorsement having been properly pleaded, we find the evidence overwhelming in its support of defendant’s guilt. The minimum elements required to be proved in a charge of forging an instrument are the actual making of the false writing and the intent to defraud. {People v. Whitaker, 127 Cal.App. 370 [ 15 P.2d 883 ] ; People v. McDonald, 16 Cal.App.2d 687 [ 61 P.2d 66 ].) Two handwriting experts established the endorsement on the reverse side of each cheek (Exs. 1 through 4), “Joseph G. Carr 4731 Waring Ave LA, Calif.,” to be in the handwriting of the defendant; and from this and other evidence the jury had a right to infer that defendant intended to defraud someone. {People v. Cullen, 99 Cal.App.2d 468 [ 221 P.2d 1016 ] ; People v. Horowitz, 70 Cal.App.2d 675 [ 161 P.2d 833 ] ; People v. Platt, 124 Cal.App.2d 123 [ 268 P.2d 529 ].) Moreover, direct and circumstantial evidence supporting the conclusion that defendant presented the checks with their forged endorsements receiving therefor goods and cash, is an added circumstance for the consideration of the jury. {People v. Brown, 137 Cal.App.2d 138 [ 289 P.2d 880 ].)

As to proof that defendant forged the checks, he says there is none in the record and further, that People’s handwriting expert would not give an opinion that defendant also wrote the name “Richard B. Bardwil” on the face of the

Although the word “same” standing alone might well refer to both the “certain check” and “an order in writing for the payment of money” (endorsement) as alleged, it is apparent from the following language therein, “knowing that said check was forged, ’ ’ that the utterance of the forged instrument was limited to “a certain check” and did not include the “order in writing for the payment of money” or the forged endorsement. Thus, using but not accepting appellant’s premise, while each count on its face shows but a single offense of forgery — making and uttering the same instrument, a check (§470; People v. Keene, 128 Cal.App.2d 520 [ 275 P.2d 804 ] ; People v. Leyshon, 108 Cal. 440 [ 41 P. 480 ] ; People v. Harrold, 84 Cal. 567 [ 24 P. 106 ]), the proof supports not the making of the checks but only the making of the endorsements and the passing of both the forged endorsements and the forged checks; but inasmuch as defendant is charged only with uttering a forged check and the false making and passing do not in the pleading relate to the same instrument, two separate and distinct though related offenses, forgery of endorsement and utterance of a forged check, are alleged in the same count. Even if the record did not support the charge of forgery of the checks, it would be unnecessary to consider whether such pleading is actually duplicitous, for the matter was raised in

To constitute forgery by uttering the checks in question, the evidence must show that they were in fact forged, that defendant presented them as true and genuine instruments, and that he knew them to be forged at the time he presented them and passed the same with intent to defraud. (People v. Smith, 103 Cal. 563 [ 37 P. 516 ] ; People v. Chapman, 156 Cal.App.2d 151 [ 319 P.2d 8 ]; People v. Pounds, 168 Cal.App.2d 756 [ 336 P.2d 219 ].)

That the checks were not genuine but in fact forged, is established by the testimony of Richard B. Bardwil, the purported drawer, that he neither signed nor authorized anyone else to sign his name to them. (People v. Whiteman, 114 Cal. 338 [ 46 P. 99 ].) Thus they must have been signed by either the defendant or Joseph G. Carr, the payee, for no other person appears to have had anything to do with them. Handwriting experts have established that defendant wrote the endorsement “Joseph G. Carr” and the address on the reverse side of each check, and testified he could have written the Bardwil name; and it is a reasonable inference that defendant not only wrote the endorsement but also wrote Bardwil’s name, particularly in view of the further evidence that he, by writing the endorsement, offering identification as such, presenting the check in each instance and accepting goods and money therefor, represented himself to be Joseph G. Carr. Defendant neither produced Joseph G. Carr nor explained his absence at the trial nor gave any explanation concerning how he obtained the checks or why he signed Carr’s name (People v. Murrie, 168 Cal.App.2d 770 [ 336 P.2d 559 ]), preferring to rest on his denial that he had anything to do with them, which defense the jury chose not to believe. Certainly the implication is strong that defendant not only knew the checks were forged and not genuine when he passed them, but that he himself wrote the name of Richard B. Bardwil without his authority; moreover, it is

On the issue of his identity as the person who presented the four checks, appellant relies upon the inability of the witnesses Jaques (Count III) and Burkhart (Count IY) to identify him, the asserted impeachment of the witness Sorenson (Count II), the alleged “conflict of testimony” of Goodman and Hatch (Count I), and the credibility of the alibi testimony of defendant and his witnesses. The basic difficulty with appellant’s argument is that it is a factual one which could well have been made to the jury but has no place before this court, and it completely ignores the well-settled principle that the credibility of the witnesses, the weight of the evidence and the resolution of factual conflicts are all matters for the trier. {People v. Newland, 15 Cal.2d 678 [ 104 P.2d 778 ] ; People v. Chesney, 72 Cal.App. 570 [ 237 P. 793 ] ; People v. Howard, 46 Cal.App.2d 722 [ 116 P.2d 802 ] ; People v. Horowitz, 70 Cal.App.2d 675 [ 161 P.2d 833 ]; People v. Hopper, 168 Cal.App.2d 406 [ 336 P.2d 28 ]; People v. Murrie, 168 Cal.App.2d 770 [ 336 P.2d 559 ].) Obviously the jury, as it had a right to do, believed the testimony of the two handwriting experts establishing defendant to have written the endorsement on the reverse side of each check, the prosecution witnesses, including Sorenson,

As to the claimed deficiencies and conflicts in the identification testimony, it is the rule that identification is a factual question {People v. Hightower, 40 Cal.App.2d 102 [ 104 P.2d 378 ]) and weaknesses and inconsistencies, if any, in the testimony are matters of argument to be considered by the trier of fact and cannot properly be directed to this court {People v. Williams, 53 Cal.2d 299 [ 347 P.2d 665 ] ; People v. Farrington, 213 Cal. 459 [ 2 P.2d 814 ]), unless the evidence of identification is so weak as to constitute no evidence at all {People v. Kitrelle, 102 Cal.App.2d 149 [ 227 P.2d 38 ]) or can be strictured as inherently impossible or incredible as a matter of law {People v. McNeal, 123 Cal.App.2d 222 [ 266 P.2d 529 ] ; People v. Hornes, 168 Cal.App.2d 314 [ 335 P.2d 756 ]), neither of which is here present.

It was proved by eyewitnesses in their positive identification that defendant presented the two checks alleged in Counts I and II; as to Counts III and IV, handwriting experts established the fraudulent endorsement on the reverse side of the checks (Exs. 3 and 4) to be in defendant’s handwriting, and the circumstances surrounding all four transactions — defendant’s prior acquaintance with Bardwil, the theft of the latter’s checkbook, the identity of address, the presence of defendant in Bardwil’s office on occasions immediately prior to the theft of Bardwil’s checkbook, defendant’s possession of all four checks and the similarity of circumstances surrounding the presenting of each, support the conclusion that defendant was the person who presented the checks alleged in Counts III and IV. Defendant’s denial and the testimony of his alibi witnesses did no more than create a conflict in the evidence that the trial court had the duty to resolve {People v. Simpson, 43 Cal.2d 553 [ 275 P.2d 31 ] ; People v. Ferrato, 69 Cal.App.2d 176 [ 158 P.2d 573 ] ; People v. McNeal, 123 Cal.App.2d 222 [ 266 P.2d 529 ]) and did so, against the defendant.

On direct examination defendant testified that when he was arrested he overheard Officer Woodring refer to him as a “wop” and class him with “jews and niggers.” He claims that these references to him “are improper remarks.”

Moreover it is apparent that whatever evidence was offered in this connection was offered only by defendant himself on direct examination. If the effect thereof was harmful, creating a bias in the minds of the trier, defendant is hardly in a position at this time to complain of it, having voluntarily submitted the evidence to the jury.

Finally appellant claims that the deputy district attorney committed prejudicial error by questioning him concerning whether he consulted a handwriting expert.

The prosecution had produced two handwriting experts who testified in effect that defendant wrote the forged instruments ; their comparison of the handwriting on the reverse side of the checks was made with the handwriting defendant had been asked to give on the exemplar (Ex. 5). On cross-examination the deputy district attorney queried defendant extensively about the conversation he had with the police officer relative to whether he wrote the checks, and defendant testified that he told the police officer concerning the handwritten exemplar “this is not my handwriting because you told me to write like this.” The deputy district attorney then asked defendant if he at any time consulted an expert; defendant answered “yes,” whereupon he asked him “did you find an expert who would come to court and testify that you did not make that writing, the writing that appears on the back of those cheeks?” Defendant answered, “I don’t believe everything was submitted to this expert.” The deputy district attorney asked the same question again and the trial judge sustained an objection thereto and immediately instructed the jury “to disregard the question and not to draw any inferences from it whatever.” The court then, upon being asked by the deputy district attorney, said he thought the question was improper. Thereafter defendant sought to explain why he wrote Exhibit 5 as he did.

Any impropriety in asking if defendant found an expert who would testify that he did not write the endorsements, under the circumstances, appears to have been cured by the court’s admonition to the jury (People v. Osslo, 50 Cal.2d 75 [ 323 P.2d 397 ]), particularly in view of defendant’s

For the foregoing reasons the judgment and order denying motion for new trial are affirmed; and the purported appeal from the sentence is dismissed.

Wood, P. J., and Fonrt, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied February 15, 1961.