People v. Porter

Defendant, appearing in propria persona as he did in the trial court, appeals from a judgment, after jury verdict, convicting him of the crime of violating section 476a of the Penal Code (issuing check without sufficient funds, with intent to defraud), and from the order denying his motion for a new trial.

Contention's

1. Insufficiency of the evidence. 2. Error in admission of defendant’s statements. 3. Court misled the jury concerning handwriting testimony. 4. Court refused to appoint a handwriting expert for defendant. 5. Court refused to permit defendant to take a lie detector test. 6. Error in instructions. 7. Prejudice of the court.

1. Evidence Sufficient

The chief basis of the contention that the evidence is insufficient to justify the verdict, is that the defendant’s story, if believed, showed that he had no intent to defraud. However, the jury obviously did not believe his testimony, and did believe that of the prosecution. There was ample evidence to prove all the necessary elements of the crime, including intent to defraud. On Sunday afternoon, October 16, 1949, defendant Lloyd Porter entered the Rodeo Drug Store in Salinas and made a small purchase from the proprietor, John Fratini. Defendant offered in payment a check for $21. This check was dated the same day, drawn on the Salinas branch of the Bank of America, with Lloyd Porter as

2. Admission op Dependant’s Statements

Defendant contends that they were not admissible because not freely and voluntarily made. As pointed out above, there was a conflict in the testimony and it was for the jury to resolve this conflict, which they did. The court fully instructed the jury on what constituted “free and voluntary” and even on the difference between admissions and confessions.

3. Testimony on Handwriting

On cross-examination of Lieutenant Roberts, defendant asked Roberts if he was a handwriting expert. Roberts replied, “I wouldn’t say a handwriting expert, no.” Then the following occurred: “By Mr. Porter: Q. You wouldn’t be qualified then to pass on that that was definitely the defendant’s handwriting? A. I don’t believe I was ever asked to do that. By the Court: Q. But you saw his handwriting a great many times, is that right? A. Right. Q. And in your opinion, it is his handwriting? A. Yes. Q. And you told him so at the time? A. Right. Q. Have you changed your mind about it at all ? A. No. ’ ’

Defendant contends that by this action the court told the jury that Roberts was a handwriting expert. The action of the court is not subject to such construction. The court was merely asking, as it had a right to do, for the opinion of one who had seen the handwriting many times. Section 1870, subdivision 9, of the Code of Civil Procedure provides: “The

Defendant now contends that Roberts’ testimony as to his familiarity with defendant’s handwriting was false. However, he did not question Roberts’ statement at the trial and there is no evidence in the record upon which such claim of falsity can be based.

4. Refusal to Appoint Expert

Defendant, testifying in his own behalf, after stating that he had never denied cashing the check but had denied cashing it with intent to defraud, stated: “And what I would like more than anything else is to have the handwriting expert to examine that check and that hasn’t been done by the prosecution.” He then continued his testimony without pause. This is the only intimation at the trial that he desired a handwriting expert appointed. He now contends^ that this constituted a demand that the court have the check analyzed by a handwriting expert. It is plain that it did not constitute such a demand. Moreover, assuming it to be a demand, the language of the court in People v. Conte, 17 Cal.App. 771 [ 122 P. 450 , 457], concerning a demand by defendant that a doctor who testified as to a rock used as a murder weapon but which no longer had visible blood stains on it, be required to analyze the rock for blood, is applicable here (p. 784) : “. . . we are familiar with no law requiring the court under such circumstances to order the services of an expert witness in behalf of a defendant to be compensated for out of the public funds. ’ ’

5. Lie Detector

The same thing is true concerning a request made by defendant in chambers at the conclusion of the testimony that the court submit him to a lie detector test. In People v. Wochnick, 98 Cal.App.2d 124 [ 219 P.2d 70 ], after an exhaustive review of the cases on the subject of lie detector tests as evidence, the court said (p. 128) : “We are in accord with the views expressed in the foregoing cases that ‘the systolic blood' pressure deception test for determining the truthfulness of testimony has not yet gained such standing and scientific recognition as to justify the admission of expert testimony deduced from tests made under such theory. ’ ” As the result of such a test would not have been admissible in evidence,

6. Instructions

Defendant states that the court “did unlawfully misinstruet the jury. ’ ’ The only specification of error is defendant’s claim that the court instructed the jury on section 476 as well as 476a of the Penal Code. The court at no time instructed concerning the elements of the offense set forth in section 476 (uttering a fictitious check). It fully and fairly instructed on the elements of the offense set forth in section 476a, emphasizing the fact that for a conviction it was necessary that the intent to defraud be proved. The court did say, “It is no defense to the prosecution for making and uttering a fictitious check that after the check was passed, the defendant attempted to make restitution.” (Emphasis added.) This sole reference to “fictitious check” did not constitute a charge under section 476, and if error, it was harmless, as it is obvious that the court was referring to the matter of restitution rather than to the type of crime. Defendant could be convicted of violating section 476a if the jury found the intent to defraud, whether it found that he actually wrote the maker’s signature on the check, or passed it knowing that the maker (his brother) had no funds in or credit with the bank. We can find no error in the instructions.

Recent Developments

Since defendant’s conviction and this appeal was perfected, defendant has attempted to file with this court a letter which would indicate that the bank official was in error in testifying that defendant at no time had an account with the bank. This letter, of course, has no place in the record. Moreover, it is immaterial. It showed that defendant closed out his bank account on January 1, 1945. At the trial, defendant did not contend that he still had a bank account at the time he cashed the check. Moreover, he contended that the check was drawn by his brother on his brother’s bank account. There was no such account.

7. Prejudice op the Court

Defendant contends that he was tried by a prejudiced court. The only specification concerns the following incident: Defendant, while testifying, stated to the prosecuting attorney, Mr. Barron, that the latter had offered to “drop this charge to a misdemeanor for a County Jail sentence. Was that true ? ’ ’

The judgment and order appealed from are affirmed.

Peters, P. J., and Wood (Fred B.), J., concurred.