Opinion
Crim. No. 975.
August 19, 1921.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Franklin A. Griffin, Judge. Reversed.
The facts are stated in the opinion of the court.
John J. Greeley and Theodore A. Bell for Appellant.
U.S. Webb, Attorney-General, and John H. Riordan, Deputy Attorney-General, for Respondent.
The defendant was convicted of the crime of forgery and he has appealed from the judgment and an order denying him a new trial. The information on which he went to trial pleaded in one count (1) the forging, and (2) the uttering of a check purporting to be indorsed by the payee therein named, G. Cerruti. A trial was had and the jury brought in a general verdict of guilty as charged.
[1] In support of his appeal the defendant contends that the trial court erred in allowing evidence of the confession of the defendant because it had not been shown that the confession was voluntary. As to whether the confession was voluntary or otherwise, a great deal of time was taken up during the trial of the case in the examination of each witness who was present at the time of the confession. The interview in which the defendant confessed was a long one, covering four hours or more. During that time much conversation was had, but it does not appear that anything occurred which can be said was in the nature of a threat or a promise. We are not inclined to say that the evidence on those subjects was even conflicting, but conceding that it was, such is the broadest summary in favor of the defendant, and the conflict was for the trial court to determine and this court is bound by that determination.
For the purpose of showing that the forgery of the check described in the information was but a part of a larger plot and plan the prosecution introduced other forged checks. It was the contention of the prosecution that the defendant Calpestri, together with one Sindici and one Rinaudo, were co-workers in one department of one of the plants of the California Packing Corporation; that they had such charge of the time-books, checks, and payments as to enable them to manipulate the pay checks in such manner as to be able to cause the employer to pay certain checks under the belief that the payee was in its employment and that the proceeds of the forged checks were so obtained by the manipulators. If we call this a general plan and plot the evidence was admissible. ( People v. Frank, 28 Cal. 507, 517-519; 1 Greenleaf on Evidence, 16th ed., pp. 71-74, and note 73.) Or, if the foregoing facts be said to be, and to constitute, a conspiracy, then, and in that event, the evidence was admissible. As tending to prove a conspiracy, some of the forged instruments, it was testified, were forged by the defendant, and some were forged by Sindici. Whether forged by the defendant or by Sindici, certain of the checks, after being forged, were presented for payment by the defendant, the individual whose duty it was ordinarily to go to the bank in the ordinary and proper transaction of the business of the employer.
Much testimony of this kind was introduced before the prosecution called witnesses regarding the confession. The appellant calls to our attention the rule stated in People v. Compton, 123 Cal. 403, [56 P. 44]. The court was there speaking of the force and effect of the uncorroborated testimony of an accomplice. In this case we are concerned with the confession of the defendant. The facts of this case do not throw it within the rule stated in the Compton case. Nor is this case ruled by People v. Baird, 105 Cal. 126, 129, [38 P. 633]. Aside from the confession there were such facts introduced in evidence that the prosecution might have gone to the jury without the introduction of the confession at all. It would serve no purpose to attempt to restate all the testimony that may be said to be independent of the confession. However, it may be stated that the exhibits have been certified up and are before this court. The check set forth in the information is before us. On the face of the check the same is made payable to G. Cerruti. It was indorsed (as one at first would be inclined to read it) "G. Cerrutie." When, however, one picks up the exemplars of Calpestri's writing and studies the signature of Calpestri, the fact stands out prominently that his name is Calpestri and that he writes the same as though the spelling were "Calpestrie." The terminal letters in the forged signature, G. Cerruti, and in the ordinary writing of his own name by Calpestri have such a strong peculiarity and resemblance that slight study of the writings demonstrates that the signature might just as well have been written "G. Cerruti by E. Calpestri." When the evidence stood in that form, and the prosecution took the next step and proved by G. Cerruti that the writing was not his and that he had never authorized Calpestri to write the signature for him, a very strong prima facie case had been made out for the prosecution.
[2] On the request of the prosecution the court gave two instructions as to the effect of evidence showing possession of, or obtaining money on, a forged instrument. The appellant contends that those two instructions were prejudicially erroneous. ( People v. Mitchell, 55 Cal. 236, and Davis v. Hearst, 160 Cal. 143, 177, [ 116 P. 530].) The instructions complained of are as follows:
"The court instructs the jury that where one is found in possession of a forged instrument and is endeavoring to obtain money or advances upon it, this raises the presumption that he either forged or consented to the forging of such instrument, and nothing else appearing, the person will be presumed to be guilty.
"The court instructs the jury that if you are satisfied beyond a reasonable doubt that the indorsement upon the check in this case (People's Exhibit 4), is a forgery, and that the defendant had it in his possession and obtained money from the Bank of Italy upon it, then this raises a presumption of guilt and unless the defendant has rebutted it, you will find a verdict of guilty." (Italics ours.) If there are any such presumptions in California the same must be printed somewhere in the codes or other statutes because section 1959 of the Code of Civil Procedure provides: "A presumption is a deduction which the law expressly directs to be made from particular facts." Conclusive presumptions are enumerated in section 1962 of the Code of Civil Procedure. No one claims that the presumption recited in the above instructions fall within that section. Section 1963 of the Code of Civil Procedure enumerates the most of the disputable presumptions. It is a long section. Read it from the beginning to the end and one finds no such presumption as the one that is recited in the instructions. Search the codes and statutes and one fails to find such presumptions. In a long line of cases the supreme court of this state has uniformly pointed out the distinction between the word "presumption" and the word "inference." Many of those cases are collected in Davis v. Hearst, 160 Cal. 143, 177, [ 116 P. 530]. However, if the above instructions are read as though the word "presumption" was used as being synonymous with the word "inference," still the instructions were prejudicially erroneous because each instruction in effect told the jury that it must infer the guilt of the defendant. As the power to draw inferences rests with the jury, the trial court takes the case away from the jury when it tells the jury that it must infer. As the supreme court said in denying the application for a hearing in that court of the case entitled People v. Stephens, 29 Cal.App. 616, at page 622, [157 P. 572, 573]: "The existence of such intent was a matter to be proved by the prosecution, and while the jury were at liberty to infer such intent from such facts and circumstances as were stated in the instruction, it cannot be held to be a correct proposition of law to say substantially that they must so infer." (Italics the court's.) In several of the common-law states like North Carolina and Missouri there is a different classification and they speak of presumptions of law and presumptions of fact. Instructions perfectly sound in those other states are not necessarily sound propositions of law in the state of California where we have different rules established by statute. It is patent that the two instructions complained of were erroneous and that they were prejudicial to the rights of the defendant.
The judgment of conviction and the order denying a new trial are both reversed.
Nourse, J., and Langdon, P. J., concurred.