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Opinion
Defendant Paul A. Norwood and Willie Curtis Andrews[1] were charged by information with four separate violations of Penal Code section 475a. Counts I and H specified the instrument involved in each of those counts as “a completed warrant.” The specific pleading of counts ITT and IV alleged, in part, possession of “a completed money order . . . with the intent to defraud Frank Gentile and American Express.” A prior robbery conviction was also alleged against defendant.
1 Apparently tried separately and not a party to this appeal.
Defendant contends: (1) the trial court erred in denying his motion under Penal Code section 1118 as to counts I, II, and III; and (2) the evidence is insufficient to support the convictions. This court upon its own motion asked for supplemental briefing on whether a county warrant, such as those introduced in proof of counts I and II, comes within the purview of Penal Code section 475a[3] which specifies only “a completed check, money order, or traveler’s check.” We have concluded that the judgment insofar as counts I and II are concerned must be reversed for the reasons which we shall set forth below, but that it should be affirmed as to count III. We defer detailed summarization of the evidence until after we dispose of counts I and II on legal grounds and then take up the assignments of error urged by defendant as to his conviction on count III.
No Corpus Delicti Under Counts I and II.
We note in limine that we may properly consider whether the corpus delicti of a violation of Penal Code section 475a was established by the introduction of a Los Angeles County “Auditor Controller’s General Warrant” in proof thereof, even though the issue was not raised by defendant either in the trial court or before us. An appellate court may note errors not raised by the parties if justice requires it. (Silber v. United States (1962) 370 U.S. 717 , 718 [ 8 L.Ed.2d 798 , 799, 82 S.Ct. 1287 , 1288]; People v. Renchie (1962) 201 Cal.App.2d 1 , 7 [ 19 Cal.Rptr. 734 ]; People v. Ross (1961) 198 Cal.App.2d 723 , 730 [ 18 Cal.Rptr. 307 ].) The failure of an accusatory pleading to state a public offense is not waived by a defendant’s failure to demur (Pen. Code, § 1012; People v.
2 Tantamount to a negative finding. (In re Candelario (1970) 3 Cal.3d 702 , 706-707 [ 91 Cal.Rptr. 497 , 477 P.2d 729 ].)
3 This section provides: “Every person who has in his possession a completed check, money order, or traveler’s check, whether the parties thereto are real or fictitious, with intention to- utter or pass the same, or to permit, cause,' or procure the same to be uttered or passed, to defraud any person, is punishable by imprisonment in the state prison for not less than 1 nor more than 14 years, or by imprisonment in the county jail for not more than one year.”
We hold as to counts I and II that the essential elements of a violation of Penal Code section 475a were not established. The accusatory pleading specified a “warrant”; the evidence was a Los Angeles County “Auditor Controller’s General Warrant,” which is not a check, a money order, or a traveler’s check explicitly enumerated in the section.
A. The Warrant Not a Check. The pertinent formal portions of the warrant[4] read:
“Auditor Controller’s General Warrant 16-66
County of Los Angeles 1220
The Treasurer of the County of Los Angeles will pay to the order of:
Apr 1 1971
Los Angeles, California
[Name and address of payee filled in] $161.00
General Fund
Approved
Mark H. Bloodgood Auditor-Controller By
[facsimile signature] J. S. Rasmussen”
In form, this is essentially the same as the warrant set forth in Dana v. City & County of San Francisco (1861) 19 Cal. 486 , 491. It was there
4 We use the singular since the warrants under the two counts are of the same type.
The terms “draft” or “check” may at times encompass a non-negotiable instrument under the Uniform Commercial Code (§ 3104, subd. (3)), but this warrant nonetheless is not a check. To be a check the instrument must be a draft drawn on a bank and made payable on demand. (Com. Code, § 3104, subd. (2)(b).) A draft is an order to- pay a sum certain in money, signed by the drawer, payable on demand or at a definite time, and to order or bearer. (Com. Code, § 3104, subds. (1) and (2)(a).) “An. ‘order’ is a direction to pay and must be more than an authorization or request.” (Com. Code, § 3102, subd. (l)(b).) “An instrument which states that it is payable at a bank is not of itself an order or authorization to the bank to pay it unless the bank is the drawee.” (Com. Code, § 3121.)
The only reference to a bank on the warrant in question is the 1 f\ f\f\ esoteric symbol > th® denominator (routing symbol) indicating the Los Angeles Federal Reserve Bank by “1220” and the numerator (transit number) indicating that the bank is a Los Angeles bank by “16,” and the specific bank in Los Angeles by “66.” (See 2 Cal. Commercial Law (Cont.Ed.Bar 1964) § 9.11, pp. 160-161.) Just as a serial number on a given check is not considered a part o-f the instrument in determining its legal nature, the routing and transit code numbers are not to be considered a part of the instrument in resolving its legal incidents. (See Hart and Willier, Essential Attributes of Commercial Paper (1971) 1 N.M. L.Rev. 479 , 494.)
Although it does not define the term “check-warrant form,”[6] Govern-
5 But see United States v. First National Bank of Boston (D. Mass. 1967) 263 F.Supp. 298 , 301-302, holding that although a postal money order is not a negotiable instrument, some aspects of negotiability may be ascribed to it by considering the bank transit numbers in light of a regulation providing that the money order could be cashed at any bank. Thus a bank having paid out on postal money orders (stolen from a post office) in good faith and without notice did not have to refund the moneys which the government had earlier paid to the bank on the money orders.
6 We need not define it here, but maybe it refers to a warrant in the form discussed in United States v. Estate of Swan (5th Cir. 1971) 441 F.2d 1082 , 1083, 1084. The instrument was entitled, “Trust Fund Warrant,” but it was otherwise drawn on a bank *155 by the county clerk and met all the requisites for a check specified by the Uniform Commercial Code as adopted in Texas. The parties conceded that it was a negotiable instrument.
Applying the foregoing criteria to the warrant in question, we hold that it is not a check.
B. The Warrant Not a Money Order. The term, “money order,” may encompass non-negotiable as well as negotiable instruments.[8] It may be issued by a governmental agency,[9] a bank,[10] or a private person or entity authorized to issue same.[11] The essential characteristic common to all these various types of money orders is that they are purchased for the purpose of
7 Govemment Code section 53911: “The governing body may authorize the use of check-warrant forms, to be drawn by its appropriate warrant issuing officer or officers upon the custo'dian of its funds, so prepared that the custodian may, by subscribing a direction to the depository of the funds to pay the funds to the order of the payee, convert the instrument to a check or, by subscribing an endorsement that the warrant is not paid for want of funds, convert the instrument to an interest bearing warrant and the governing body may direct that check-warrants shall not be delivered to the payees named therein until the direction or indorsement has been subscribed by the custodian of its funds.” (Italics added; note distinction made between depository of funds and custodian of funds.)
8 See, e.g., Garden Check Cashing Service, Inc. v. First Nat. City Bank (1966) 25 App.Div.2d 137 [ 267 N.Y.S.2d 698 ], affirmed 18 N.Y.2d 941 [ 277 N.Y.S.2d 141 , 223 N.E.2d 566 ]; Nation-Wide Check Corp. v. Banks (D.C.Mun.App. 1969) 260 A.2d 367 ; Bolognesi v. United States (2d Cir. 1911) 189 F. 335 , certiorari denied 223 U.S. 726 [ 56 L.Ed. 632 , 32 S.Ct. 525 ],
9 E.g., Post Office or now the United States Postal Service. ( 39 U.S.C.A. § 5101 et seq. per Pub.L. 91-375, § 5 (f).)
10 Bank of America v. Cranston (1967) 252 Cal.App.2d 208 , 217 [ 60 Cal.Rptr. 336 ], A bank may issue a money order either in the form of a “bank money order” or a “personal money order.” (See 2 Anderson, Uniform Commercial Code (1971) § 3-104:20, pp. 613-614; Brady on Bank Checks (4th ed. by Bailey, 1969) § 1.7, pp. 10-12; Clark & Squillante, The Law of Bank Deposits, Collections and Credit Cards (1970) pp. 51-56.)
11 See, e.g., Check Sellers and Cashers Law (Fin. Code, § 12000 et seq.). Judicial notice may also be taken of American Express money orders and Western Union money orders.
C. The Warrant Not a Traveler’s Check. One glance at the warrant dispenses with the need of further elucidation on this point.
D. Section 475a Restricted to Checks, Money Orders, and Traveler's Checks. Penal Code section 475a specifies only these three types of commercial paper; it contains no omnibus catch-all phrase, such as “or any instrument for the payment of money.” This is in great contrast with other sections in the same chapter of the Penal Code. For instance, the general forgery section (Pen. Code, § 470) specifically mentions “county order or warrant, or request for the payment of money, or the delivery of goods or chattels of, any kind.” Penal Code section 476 contains an omnibus catch-all phrase, “or other instrument in writing for the payment of money.” It is a settled rule of statutory construction that where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different legislative intent existed with reference to the different statutes. (People v. Kuhn (1963) 216 Cal.App.2d 695 , 699 [ 31 Cal.Rptr. 253 ]; City of Port Hueneme v. City of Oxnard (1959) 52 Cal.2d 385 , 395 [ 341 P.2d 318 ); Strauss v. Board of Supervisors (1960) 181 Cal.App.2d 133 , 142 [ 5 Cal.Rptr. 294 ].) When a section specifically enumerates one kind of instrument which can be the subject of a larceny, but that type of instrument is omitted in another section further describing types of instruments which may be the subject of that crime, the legislative intent is construed as excluding the type of instrument specifically mentioned in the first but not in the latter. (People v. Dadmun (1913) 23 Cal.App. 290 , 292 [ 137 P. 1071 ]; cf. People v. Valentine (1946) 28 Cal.2d 121 , 142 [ 169 P.2d 1 ].) Under .these mies of statutory construction, we find the legislative intent to restrict the application of section 475a to just the three types of commercial paper specifically enumerated.
We respectfully invite the attention of the Legislature to this situation. In these times when warrants of the kind involved in this case continue to grow in use and are left in mailboxes, easy to pilfer, especially in areas
Penal Code Section 1118 Motion Properly Denied as to Count III.
We find no error in the trial court’s having denied defendant’s motion for acquittal under Penal Code section 1118.[12] The evidence produced by the People in its case in chief showed:
On April 27, 1971, Officer Victor J. Terry of the Los Angeles Police Department observed defendant place two Los Angeles County warrants later adduced in proof of counts I and II (exhibits 1 and 2), an American Express Company traveler’s check introduced in proof of count III (exhibit 3) and a driver’s license in the name of Swan Buchanan (exhibit 6) under the armrest of a vehicle in which defendant was a passenger. He also recovered two other blank checks (blue on the faces thereof) from under the armrest and a second American Express traveler’s check (exhibit 4) adduced in proof of count IV from the pocket of Willie Curtis Andrews, the driver of the vehicle. Officer Terry transported defendant to police headquarters where he had defendant execute handwriting exemplars. He did not at any time confront defendant with exhibits 1 through 4.
Exhibit 1 was the county warrant, dated April 1, 1971, and made payable to the order of Randolph L. Brown, 2205 East 118th Street, Los Angeles, in the amount of $161 and bore an indorsement in his name. It was stipulated that Brown would testify that: he lives at the above address,
12 The section in part pertinent here provides: “In a case tried by the court without a jury, . . . the court on motion of the defendant . . . shall order the entry of a judgment of acquittal of one or more of the offenses charged in the accusatory pleading after the evidence of the prosecution has been closed if the court, upon weighing the evidence then before it, finds the defendant not guilty of such offense or offenses. If such a motion for judgment of acquittal ... is not granted, the defendant may offer evidence without first having reserved that right.’ (Italics added.)
Exhibit 2 was the county warrant, dated April 1, 1971, and made payable to the order of Emma M. Brown, 2205 East 118th Street, Los Angeles, in the amount of $153. It was not indorsed. It was stipulated that Mrs. Brown would testify that: she too lives at 2205 East 118th Street, is a recipient of county old age assistance, failed to receive her April 1971 “check,” reported it stolen, and gave no one permission to have the “check” in his possession.
Exhibits 3 and 4 bore the name of Frank R. Gentile as the purchaser. It was stipulated that Gentile would testify that: these items were removed from the trunk of Ms car on January 27, 1971, without his permission, the signature at the top of each money order (place for purchaser to sign) was Ms, but the purported counter-signature at the bottom of each was neither his nor authorized by him. The counter-signatures placed on exhibits 3 and 4 differ from each other and from Gentile’s signatures even to a layman’s observation.
Sergeant Payan of the Los Angeles Police Department interviewed defendant, while he was in custody, after first advising him of his Miranda rights. Defendant denied knowing Randolph Brown, Mrs. Emma Brown, or Frank Gentile. The officer showed defendant People’s exhibits 1 through 4, which were then enclosed in celluloid check protectors to prevent defendant’s direct contact with them. Defendant informed the officer that he had never touched nor had he ever seen the warrants (“the Brown checks”) or the “American Express checks.”
Jay Hess, a fingerprint expert, identified a fingerprint lifted from the Emma Brown warrant (exhibit 2) as that of defendant’s right thumb.
Although the instrument is specifically pleaded as a “money order” instead of a “traveler’s check” in count III, no demurrer was interposed and defendant had notice that a traveler’s check was meant from the testimony and exhibits introduced at his preliminary hearing,[13] so that defendant was not prejudiced by this error in form only.
The rule applied in affirming a trial court’s denial of a Penal Code section 1118 motion in People v. Brown (1969) 1 Cal.App.3d 161
13 The transcript of the preliminary hearing is before us as part of the clerk’s transcript in connection with defendant’s Penal Code section 1538.5 motion in the trial court, which was denied; no issue concerning that motion and ruling is raised on this appeal, however.
Exhibit 3 was a traveler’s check completed within the meaning of Penal Code section 475a. Defendant’s possession could have been found upon the basis of Officer Terry’s testimony that he saw defendant secrete this traveler’s check along with the warrants (exhibits 1 and 2), Buchanan’s driver’s license (exhibit 6), and two other blank checks, together with defendant’s thumbprint being found on Emma Brown’s warrant (exhibit 2). The necessary fraudulent intent may be inferred from defendant’s unauthorized possession of these various exhibits. In this connection, the evidence adduced under counts I and II may also be considered even though defendant was entitled to an acquittal on the grounds we have explicated. It is settled law in California that evidence adduced in proof of a criminal charge of which defendant is acquitted may nevertheless be considered upon other criminal charges if the evidence is otherwise competent. (People v. Griffin (1967) 66 Cal.2d 459 , 464 [ 58 Cal.Rptr. 107 , 426 P.2d 507 ].) The indorsement on the warrant (exhibit 1) was a forgery, as was the counter-signature on the traveler’s check (exhibit 3). Possession of forged documents is evidence of knowledge of their spurious nature (People v. Reisdorff (1971) 17 Cal.App.3d 675 , 679 [ 95 Cal.Rptr. 224 ]; People v. Rosborough (1960) 178 Cal.App.2d 156 , 163 [ 2 Cal.Rptr. 669 ]). The unauthorized possession of more than one such instrument for the payment of money and a driver’s license made out in another’s name is evidence of fraudulent intent. The trial court could have found that defendant’s denial to Sergeant Payan that he had never seen or touched the warrants or traveler’s checks was a lie betraying a consciousness of guilt (cf. People v. Osslo (1958) 50 Cal.2d 75 , 93 [ 323 P.2d 397 ], cert. den. 357 U.S. 907 [ 2 L.Ed.2d 1157 , 78 S.Ct. 1152 ]; see Fricke, Cal. Criminal Evidence [7th ed. by Alarcon, 1966], pp. 91-92). This denial also strongly supports the inference that in placing the items beneath the armrest defendant was attempting either to hide them from the arresting officer or to disassociate himself from them because of the officer’s presence, again sug
Evidence Sustains Conviction on Count 111.
Following the denial of the section 1118 motion as to counts I, II, and III, defendant put on a defense. He called Officer William F. Roberts, who was the other arresting officer, but elicited no testimony favorable to defendant other than the fact that one of the two traveler’s checks in evidence was retrieved from the pocket of the driver of the vehicle, Andrews. Officer Roberts corroborated Officer Terry’s testimony that he recovered “two county checks' [sic], two traveler’s checks and two blank checks” from inside the vehicle. One of these two traveler’s checks was the one recovered from Andrews’ pocket.
It was stipulated that defendant “was not the person who took the two checks [rzc] in Count I and Count II from the residence of Randolph Brown and Emma Brown on April 1st, 1971.”
Defendant testified on his own behalf: He was a passenger in the car owned and driven by Andrews, He had met Andrews only once before the occasion of the arrest' in this case. He saw Andrews stopping for the light at Florence and San Pedro Streets, had asked for a ride home, and had ridden just six blocks when stopped by the police. He denied having placed anything under the armrest of the car; that he did make a motion towards the armrest after the police stopped the car to pick up a pack of cigarettes. He did not see exhibits 1 through 4 prior to his being stopped. He did not see the officer find any “checks [sz'c] underneath the armrest” or at all. Officer Terry took the various items from his shirt pocket and showed them to him by laying them down on the desk. He picked up only one, namely, exhibit 2. The items were not enclosed in any check protectors when shown to him at police headquarters on the night of his arrest on April 27, 1971.
The additional evidence, considered in the light of that evidence summarized under our discussion concerning the Penal Cride section 1118 motion, amply supports the conviction. What we observed previously concerning the evidence adduced by the People in its case in chief is equally, if not more so, applicable here. It is especially significant that defendant states that he touched only the item admitted into evidence on which his thumbprint was found, and then attempts to explain its presence by an explanation at odds with that given by Officer Terry. This conflict in the evidence and the issue of credibility was for the trier of fact to resolve. It is presumed that the trial court also observed the
Disposition
The judgment is reversed as to counts I and II; the judgment is affirmed as to count III.
Kaus, P. J., and Stephens, J., concurred.
Respondent’s petition for a hearing by the Supreme Court was denied August 16, 1972.
Cases cited
- Silber v. United States 370 U.S. 717 at 718, at 1288 p. 152
- People v. Renchie 201 Cal.App.2d 1 at 7 p. 152
- People v. Ross 198 Cal.App.2d 723 at 730 p. 152
- People v. Smith 103 Cal. 563 at 566 p. 153
- People v. Grinnell 9 Cal.App. 238 at 239-240 p. 153
- People v. Bautista 6 Cal.App.3d 344 at 351-352 p. 153
- People v. Glaser 238 Cal.App.2d 819 at 824 p. 153
- In re Zerbe 60 Cal.2d 666 at 668 p. 153
- In re Bevill 68 Cal.2d 854 at 863 p. 153
- Thompson v. City of Louisville 362 U.S. 199 at 206, at 629 p. 153
- Shuttlesworth v. City of Birmingham 382 U.S. 87 at 93-95, at 214-216 p. 153
- Dana & Brother v. City of San Francisco 19 Cal. 486 at 491 p. 153
- Bank of Santa Cruz County v. Bartlett 78 Cal. 301 at 303 p. 154
- Ser-Vis v. Victor Valley Irrigation District 190 Cal. 732 at 740 p. 154
- A. G. Spalding & Bros. v. County of Contra Costa 12 Cal.App.2d 262 at 264 p. 154
- People v. Kuhn 216 Cal.App.2d 695 at 699 p. 156
- City of Port Hueneme v. City of Oxnard 52 Cal.2d 385 at 395 p. 156
- Strauss v. Board of Supervisors 181 Cal.App.2d 133 at 142 p. 156
- People v. Dadmun 23 Cal.App. 290 at 292 p. 156
- People v. Valentine 28 Cal.2d 121 at 142 p. 156
- Kellett v. Superior Court 63 Cal.2d 822 p. 157
- People v. Brown 1 Cal.App.3d 161 p. 158
- People v. Clark 62 Cal.2d 870 at 881 p. 159
- People v. Griffin 66 Cal.2d 459 at 464 p. 159
- People v. Reisdorff 17 Cal.App.3d 675 at 679 p. 159
- People v. Rosborough 178 Cal.App.2d 156 at 163 p. 159
- People v. Osslo 50 Cal.2d 75 at 93 p. 159
- Osslo v. California 357 U.S. 907 p. 159
- People v. Mosher 1 Cal.3d 379 at 395 p. 161
- People v. Johnson 276 Cal.App.2d 232 at 239 p. 161