The 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 check upon its presentation for payment. In the petition it is said that the case of People v. Kawano, 38 Cal.App. 613 [177 P. 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 the proof of that fact, is in the facts, so clearly distinguishable from the instant case that it cannot stand as an authority supporting *Page 16 the ruling allowing the testimony by the cashier in this case; that the specific distinction between the two cases is this: That, in the Kawano case, the "credit remittance man" of the bank concerned therein was specially charged with the duty of handling all business with "outside California banks"; that he testified that previous to giving his testimony, he had made a personal inspection of the books of the bank with reference to the particular account of Kawano, the defendant in said case, and that the latter had no account or credit with said bank at the time he drew the check involved in that case; whereas, so it is, in effect, declared by the accused here, the cashier did not testify nor was it shown that he had inspected the books of the bank or made any special investigation with reference to the defendant to ascertain whether he had any funds in or credit with the bank at the time the check was drawn or at any time thereafter to meet the same upon its presentation for payment. While this is all true, Irish did testify that he had been cashier of the Placerville National Bank from and including the day upon which the check was drawn continuously to the date of the trial in June, 1928; that he had no acquaintance whatever with the defendant during the period of time that he had been cashier of said bank, and, in fact, had never seen him until the day upon which he (defendant) was given his preliminary hearing on the charge upon which the information is founded; that he (the cashier) was "fairly" familiar with all of the books of the bank, and that the defendant had no account or credit with said bank at any time during his connection therewith as cashier. The irresistible inference from Irish's testimony, viewed in its entirety, is that he was sufficiently familiar with all of the books of the bank and the business thereof to justify him in declaring, as unequivocally and unqualifiedly he did declare, that the accused never at any time had any funds in or credit with said bank during Irish's occupancy of the office of cashier. The only real difference between the Kawano case and this as to the present consideration is that, while the "credit remittance man" in the case first named gained his knowledge of the fact that Kawano had no funds in or credit with the bank therein concerned from an inspection of the books, in the instant case the cashier acquired his knowledge of the same fact as to the defendant from his general familiarity with the books of the bank and *Page 17 his intimate familiarity with the business of that institution, and from the further fact that he had never known the accused and never had seen him until a brief time before the date of the trial of this case. We can see no substantial difference between the situation in the Kawano case and the situation in the present case regarding the matter in hand. It cannot be said that the cashier in this case any the less acquired his knowledge of the fact that the defendant had no funds in or credit with the bank of which he was cashier from his own perception than that the "credit remittance man" in the Kawano case thus acquired his knowledge with reference to the same fact regarding Kawano. But regardless of this latter consideration, we still adhere to the view expressed in the original opinion that this is an instance which comes within the provisions of section 1855, subdivision (5), of the Code of Civil Procedure.
There is, as to the facts, no analogy between the case ofPeople v. Frey, 165 Cal. 140, 144 [131 P. 127] (cited by defendant), and this case. There the only evidence offered and received in support of the charge that the defendant, drawer of the check, had no funds in the bank upon which the check was drawn, was a notation in writing across the face of the check as follows: "No account." The opinion in that case stated that "there was no testimony on the part of anyone connected with the bank that the words `no account' on the face of the check were written by any person connected with the banking corporation in Nevada, or by anyone who knew or could know the facts," and held, therefore, that no case was made against the accused. Clearly, as we have already substantially stated, the Frey case is far from being such a case as we have here.
The petition for rehearing is denied.
Plummer, J., and Finch, P.J., concurred. *Page 18