Bullock

The defendant was tried upon four counts of issuing checks without sufficient funds and two counts of forgery. The jury’s verdict was guilty upon all six counts. This appeal is from the judgment on the verdicts and from the order of the court denying defendant’s motion for a new trial.

The evidence discloses that the defendant made use of the same general plan in all the transactions involved in the charges made against him. In each instance the defendant opened a checking account with a bank by depositing with the bank a check drawn by him upon a bank that was without the state of California. Some of these checks so deposited purported to be certified by the bank upon which they were drawn. In some cases of the accounts so opened by the defendant, he returned and attempted to draw against the account. In one instance he did withdraw funds from such an account. In all the deposits so opened by defendant, the checks with which the accounts were opened were in due course of business returned unpaid and duly protested. The accounts in the several banks so opened by defendant, no two in the same institution, were opened in different nameá and different addresses were given. The…

I dissent. Assuming (although it is a doubtful assumption) that the “presumptive evidence” rule stated in section 476a of the Penal Code by its terms extends to the foot of insufficiency of funds or credit, I think that this legislative attempt to create such evidence by presumption is unconstitutional and void, because it permits the state to deprive a person of liberty without due process of law. It destroys the presumption of innocence, without any foundation of legal evidence tending to overcome the presumption of innocence. The notarial certificates, showing presentation, nonpayment, protest and notice of protest, do not furnish evidence of any facts justifying the bank’s refusal to pay. They do say that the “reason given” was in two instances, “no account”; in another, “certification forged”; in another, “no account, certification forgery”. And in two others, there is no statement at all of the reason given for refusing to pay. Perhaps it should be conceded that the return of the checks unpaid, and their production in evidence with the attached notarial certificates, may lawfully be used to raise the presumption that the checks were presented for payment and that .payment…

I reluctantly concur in the judgment. My consent to the affirmance of the judgment has resulted solely from the compelling force of the precedents as established by the cases to which, in the opinion of my associate, attention has been directed. It is clear that the constitutional guaranty of “due process of law” is in great danger of being set at naught. With but slight extension of the rule, either as promulgated by the statute, or as judicially announced preceding its enactment, in any criminal prosecution in which the district attorney may find it difficult to produce evidence of the guilt of the defendant, he may invoke the doctrine of “ab inconv&nienti” and thus shift to the defendant the entire burden of establishing his innocence. The formerly time-honored, but now not-greatly respected, rule of law which requires the prosecution to prove beyond a reasonable doubt every essential element of the crime of the commission of which the defendant is charged, would appear to have been given a construction which would seem to be wholly at variance with the plain language of the ordinary rule and completely out of harmony with ancient judicial precedents. It is but a short step…