Weaver

Defendant was charged by information in the superior court of El Dorado County with the crime defined in section 476a of the Penal Code, in that, on the tenth day of October, 1925, he did (now quoting from the information) “wilfully, unlawfully, fraudulently, and with intent to defraud one Tim Haw, make, utter, draw and deliver to said Tim Haw a certain check and draft on a bank and depositary for the payment of money, to-wit: The Placerville National Bank, which said check and draft was in words and figures following, to-wit: ‘Placerville, Calif. Oct. 10, 1925. No. 78. The Placerville National Bank 90-971. Pay to the order of Tim Haw $50.00, Fifty and no/100 Dollars. C. E. Weaver.’ ” He was convicted by the jury of said offense. He moved for a new trial, but the motion was denied. He appeals from .the judgment of conviction and the order denying his motion for a trial de novo.

The appeals are sought to be supported upon the claim that the evidence is insufficient to have justified his conviction and that error was committed in rulings admitting and excluding certain testimony and in the action of the trial court in the giving and the refusal to give certain instructions.

1.…

petition for a rehearing of this cause will be denied for reasons hereinafter to be stated.

The petition merely involves a repetition of the argument advanced in the briefs of counsel for the defendant in support of the points herein made. After a careful consideration of the petition, we have found no reason for departing from the conclusion announced in our original opinion upon said points. We deem it proper, however, to give further notice to the point that the trial court committed prejudicial error by allowing the witness Irish (the cashier of the bank upon which the check in question was drawn) to testify that the defendant, neither at the time the check was drawn nor at any other time thereafter during said witness’ official connection with said bank, had any funds in or credit with the bank to meet said cheek upon its presentation for payment. In the petition it is said that the case of People v. Kawano, 38 Cal. App. 613 [ 177 Pac. 174 ], cited in our original opinion as holding that the testimony of a bank officer actively connected with the bank in the management of its business that a party has no funds in or credit with such bank, is competent or legally proper for…