Summary
distinguishing between previously completed transactions and exchanges as part of the same transaction
Summary of this case from State v. PlattOpinion
February 14, 1949.
1. Indictment, affidavit — in form of statute.
An affidavit, charging a violation of the bad check statute, which follows precisely the form set out in the statute and in addition charges that the check was issued with intent to defraud, is sufficient. Secs. 2153, 2154, Code 1942.
2. False pretenses — bad check law — when transactions substantially simultaneous.
Where the accused had requested of the prosecuting witness a loan of Twenty Dollars which was refused with an offer instead to cash the check of the accused which offer was accepted, the fact that the money was delivered before the accused made out the check but while he was preparing to do so, will not avoid a conviction under the bad check law when as a part of the same transaction and immediately upon the execution of the check it was delivered in about five minutes to the prosecuting witness, the check being worthless for want of sufficient funds in the drawee bank. Sec. 2153, Code 1942.
3. Criminal procedure — presumptions — error to invoke when all the facts appear in evidence.
When the facts appear by direct and positive evidence, presumptions disappear; so that when in a prosecution under the bad check law all the facts, both for the prosecution and for the defense, are fully presented by sharply conflicting evidence, it is error to grant an instruction for the State and in support of its case that the absence of funds in the drawee bank makes out a prima facie case of an intent to defraud. Sec. 2153, Code 1942.
Headnotes as approved by Hall, J.
APPEAL from the circuit court of Jasper County; HOMER CURRIE, J.
J.M. Travis, for appellant.
The affidavit upon which the appellant was charged is in the following words and figures to-wit:
"State of Mississippi Jasper County.
Before me the undersigned Justice of the Peace, in and for District No. 5 of said County, personally came A.G. Merrill, who being first duly sworn, says that John W. Moore, in the County and District, aforesaid, on or about the 29th day of January 1948, A.D. did unlawfully, and with intent to defraud, issue and deliver unto A.G. Merrill for value $20.00 his certain check of the words and figures as follows:
Shubuta, Mississippi 1-29-1948
The Bank of Shubuta.Pay to the order of A.G. Merrill $20.00 Twenty and No/100 Dollars Counter Check John W. Moore.
When he, the said John W. Moore, had insufficient funds on deposit with the said Bank of Shubuta, with which to pay the same, and the same has been presented to the said Bank for payment, and has not been paid, against the peace and dignity of the State of Miss., same was given with the knowledge and intent to defraud.
A.G. Merrill
Sworn to and subscribed before me on this the 7th. day of May, 1948.
J.D. Patrick Justice of the Peace, Beat 5."
The appellant contends that the above purported affidavit charges no crime and is null and void for the following reasons to-wit: 1. The affidavit does not show venue. Does not show J.D. Patrick, Justice of the Peace for District No. 5, Jasper County, Mississippi, does not show State, County and District. 2. The affidavit omits the words, says upon Oath. It contains, after "Being duly sworn, says", the words "upon Oath" are omitted. 3. The affidavit does not charge that John W. Moore knew that he had insufficient funds in bank at the time the check was delivered. 4. The affidavit does not designate the section of law which he is charged with, whether sec. 2149 or section 2153. 5. The affidavit does not show that the check was presented to the bank within 30 days, as required by section 2153 of Code of 1942.
The appellant further contends that section 2153 of the 1942 Code is contrary to the constitution of the United States, and violates section 14 of the State constitution, the due process clause, and violates section 30 of the State constitution, "There shall be no imprisonment for debt".
In the first place this section of law charges a person of a crime without knowing that he had insufficient funds in the bank to cover at the time. A person cannot be guilty of a crime under this check law unless he knew that he had insufficient funds in the bank to cover. This statute makes him guilty of a crime regardless of his good faith and intentions. It makes him prima facie guilty. It has changed the general rules of evidence which have existed from our fore fathers to the present date. In a general way, it has always been the law in this state, that the burden of proof was upon the State to prove the defendant guilty beyond every reasonable doubt. This section of law shifts the burden of proof from the State to the defendant, when it is shown that the check was given, the money paid, and the check presented to the bank in thirty days and dishonored. This kind of law is equal to a directed verdict against a defendant; this prima facie statute is an unreasonable statute. It makes it possible to enforce the collection of the debt under a criminal statute, it violates section 14 of the State constitution "No person shall be deprived of life, liberty or property without due process of law." It violates section 30 of the State constitution "There shall be no imprisonment for debt."
This court upon many occasions has held that the burden of proof never shifts from the State in a criminal case. Hampton v. State, 100 Miss. 684, 54 So. 722; Bennett v. State, 56 So. 777. A statute that omits intentions to defraud and the knowledge on the part of the maker, that he had insufficient funds, is unconstitutional. State v. Johnson (Miss.) 141 So. 338; Burnam v. Common Wealth, 228 Ky. 410, 15 S.W.2d 256; State v. Avery, 3 Kansas 588, 207 P. 838, 23 A.L.R. 453; State v. Nelson (SD) 237 N.W. 766, 768, 76 A. L.R. 1726; State v. Partwood (SD) 238 N.W. 879. It was held the statute forbidding the drawing of a check with knowledge that there was insufficient funds on deposit to pay it imposed imprisonment for debt founded on contract.
The State was granted two instructions. The appellant contends that both instructions were improperly granted because they contradict themselves as to the law in the case. Section 2153 of Code 1942 makes proof of issuance delivery, payment of money or property and presentment to depository within thirty days, prima facie evidence, that the party intended to defraud. This prima facie statute shifts the burden of proof from the State to the defendant; it would therefore be prejudicial for the State to obtain an instruction on the prima facie statute as the statute sets it out, unless the negative is shown that the burden then shifted to the defendant that he had no intent or knowledge to defraud. Then giving a general instruction that the burden was on the State would be erroneous as the instructions would contradict themselves.
If section 2153 is constitutional, then the instructions of the State should have been drawn showing that the burden shifted. The jury is entitled to instructions that cover the law and if the law is incorrectly stated, they are erroneous instructions. We submit the State's instructions do not comply with the law, and they were both prejudicial instructions.
The court erred in overruling motion of appellant for a directed verdict at close of State's testimony, and erred in refusing instruction at close of the case, directing the jury to find the appellant not guilty.
The record fully discloses that the prosecuting witness loaned to appellant the sum of $20.00 on Jan. 29, 1948, this was admitted to by said State witness. It was also admitted that the money on the loan was made, and the $20.00 on the loan delivered at a different time and place, than the time and the place that the check was issued and cashed. The delivery of the money and the delivery of the check were not then and there made and at the same time and there could be no violation under the check law.
Odom v. Tally, 150 Miss. 797, 134 So. 183, the court held: "Institution of criminal proceedings under bad check law, if merely for the collection of a debt would render prosecution malicious. The delivery of the property or money and check, each must be then and there done to constitute a crime".
Grenada Coca Cola Co. v. Davis, 168 Miss. 826, 151 So. 743, this court held: "Institution of criminal proceedings under the bad check law would render prosecution malicious where check was issued for property already delivered, not withstanding such transactions were completed at previous hours of the day on which check was issued."
The record further discloses that the appellant told the prosecuting witness, at the time the check was issued, that there were no funds in the bank to pay it. And on cross-examination the prosecution witness on page 7 of the record in response to the following questions on cross-examination testified: "Q. He told you at the time he was giving you the check that he had no funds in the bank to take care of the check, didn't he? A. No. Q. He didn't? A. No. I reckon not.
The prosecuting witness A.G. Merrill having been told that the check would be no good could not have been defrauded, and this appellant committed no crime.
This very point was passed upon in the case of Hammack v. State, 114 Miss. 611, 75 So. 436, the court held: "If defendant told prosecuting witness that he did not have sufficient funds in the bank to cover, did not come within the statute, as defendant perpetrated no fraud." Geo. H. Ethridge, Assistant Attorney General, for appellee.
The attorney for the appellant assigns for reversal that the affidavit undertaking to charge the appellant with a crime is null and void. I submit that the affidavit sufficiently charges the crime and especially in the absence of a demurrer thereto as required by Sec. 2449, Code 1942.
He assigns that Section 2153, Code 1942, headed "False Pretenses" violates sections 14, 26 and 30 of the constitution of the State. It appears that the prosecution is under section 2153 which was in force at the date the crime was committed but has since been amended so as to increase the penalty so far as the fine is concerned by House Bill 240, Laws of 1948. I submit that there is no violation of either of the sections relied on because the affidavit in this case charges specifically that the appellant did unlawfully and with intent to defraud, issue and deliver to the said A.G. Merrill a check of the value of $20.00 when he had insufficient funds on deposit with the said Bank of Shubuta with which to pay the same and the same had been presented to said bank for payment and has not been paid. The substance is sufficiently charged in this affidavit and in the absence of a demurrer it cannot be now considered as to any defects of averment unless the affidavit was absolutely void which it is not.
The proof in the case for the State fully established the falsity of the check and there is no pretense that funds were in the bank when the check was given or at any time subsequent thereto. Indeed, the appellant, himself, so states but contends that he told Merrill that the check was worthless when he gave it and seemingly relies on the principle that if a person takes a check knowing that the person who gave it has no funds there will be no false pretenses. The appellant's testimony itself shows that he knew that he did not have the funds in the bank at the time the check was given nor at any time subsequent thereto.
Appellant contends with reference to the instructions granted to the State that these instructions were erroneous. The testimony in the case fully justified the instructions appearing these pages and they contain the necessary hypothesis to sustain the conviction found by the jury and pronounced by the court.
The proof in the case shows by express evidence all that is essential to constitute a conviction if the hypotheses contained in the aforementioned instructions are believed and does not need the aid of presumptions with reference thereto. It is immaterial in the case here that the court instructed the jury that the facts recited in the instructions were prima facie evidence of intent to defraud the payee because there was express proof and the testimony of the defendant shows that he relied principally on the fact that it was a gambling debt for which the money was borrowed and the check given. It does not appear that there was a gambling debt due from Merrill to the appellant but seemingly the appellant had the idea that if a crap game was going on and money was borrowed during the game that that would constitute a gambling transaction. However, this is immaterial for the reason that on all the proof the state overwhelmingly established that it was a contemporary transaction within a few feet of the filling station and in the presence of a disinterested witness who corroborated Merrill and disputed the appellant as to the transaction. Appellant states — "The prima facie statute shifts the burden of proof from the State to the defendant; it would therefore be prejudicial for the State to obtain an instruction on the prima facie statute . . ." While the State could have relied pospossibly on the prima facie statute embraced in section 2153, the proof fully sustained an actual intent to defraud and I think that Merrill would not have let him have the money on the check if he had told Merrill that the check would not be good or that he had no funds from which it could be paid. His testimony in this regard is too simple and unbelievable to be accepted even by the most credulous people. The appellant contends that the prima facie statute is possibly unconstitutional. Properly construed, the latter part of section 2153 is construed and designed to be applied when there is no proof of the actual intent to defraud by competent evidence under the hypothesis stated in the statute. Where the facts in the case are in conflict the prima facie presumption would be immaterial and unneedful to make out the case. Wherever they are disputed and the facts cover the transaction involved the presumption disappears and the giving of the feature in question in instructions in such a case would be, at most, error without prejudice. It is said that a very large part of the business of the country is conducted through checks treated as cash or used in lieu of cash and that it serves a great convenience to have checks so treated. Should a case develop in which the giving of a check and obtaining property or other thing of value thereby and the check was not paid on presentation within thirty days, and there was no other proof on the matter, then the presumption would come into play but it would not be conclusive in any case where the defendant presented evidence of an explanatory nature dispelling the presumption by testimony, and leaving it for the acceptance or rejection of the jury. It may be safely conceded, although I do not concede it in this case, that the instruction was improperly given, yet it would be harmless error in such case for the verdict was justified even on the testimony of the defendant himself considered as a whole. Taking his testimony as being true, I submit that he gave the check and obtained the money thereon simultaneously and procured the money of Merrill by means of a check which he knew could not be paid because he did not show that he had any money in the bank on the date the check was given nor at any time thereafter. His testimony is further discredited by the fact that when the check was first returned and demand made of him for the money he promised to pay the money within two or three days but made no effort so to do. I submit that there is no reason to reverse the case on account of this instruction.
Upon an affidavit charging a violation of the Mississippi Bad Check Law, Section 2153, Mississippi Code of 1942, appellant was convicted in the Justice of the Peace Court. He appealed to the Circuit Court and was again convicted, and now appeals to this Court.
(Hn 1) In this Court the appellant challenges for the first time the sufficiency of the affidavit upon which he was convicted. This affidavit follows precisely the form set out in Section 2154 of the Mississippi Code of 1942, and in addition thereto charges that the check was issued with intent to defraud, and in our opinion is sufficient to charge appellant with a violation of the statute first mentioned.
Appellant further contends that he was entitled to a directed verdict in his favor because, under his contention, the evidence discloses that the check in question was given merely in payment of a previous loan. The evidence offered by the state shows that the appellant approached the prosecuting witness, A.G. Merrill, in front of Martin's Service Station in Justice District No. 5 of Jasper County and requested a loan of $20; that Merrill declined to make such a loan but did agree to cash a check for appellant in the amount of $20, and thereupon Merrell handed the sum of $20 in cash to appellant, and appellant went inside the service station, obtained a blank check of the Heidelberg Branch Office of Bay Springs Bank, changed the name of the bank to Bank of Shubuta, filled out the check for $20 in favor of Merrill, and delivered the check to Merrill; that the check was presented to Bank of Shubuta within less than thirty days, and payment was declined because appellant had no funds on deposit therein, and that the check has never been paid. Merrill testified that he would not have parted with his money without the execution and delivery of the check to him. He was corroborated by another witness who was present at the time. The evidence for the State discloses that the check was given immediately after delivery of the money to appellant, that not more than five minutes elapsed between the delivery of the money and the delivery of the check, that the appellant and Merrill were together during this brief interval, and that the money was delivered to appellant upon the faith that the check was presently good.
Appellant testified in his own behalf that the $20 was loaned to him by Merrill about two hours before the delivery of the check, and that at the time of delivery he advised Merrill that he had no money in the bank. This was denied by Merrill and the other witness for the State. The issue thus raised was submitted to the jury with the result above stated.
Appellant contends that even under the proof offered by the State he was entitled to a peremptory instruction because the money passed into his hands before he delivered the check, and he relies upon Odum v. Tally, 160 Miss. 797, 134 So. 163, and Grenada Coca Cola Co. v. Davis, 168 Miss. 826, 151 So. 743. Both of those cases were actions for the recovery of damages for malicious prosecution growing out of the delivery of worthless checks. In the Odum case it was held that if the check was given for previous purchases then the prosecution was malicious but "if, on the other hand, the check was given for goods purchased on the day the check bears date, and the goods were then and there delivered to appellant in exchange for said check and on the faith that the check was presently good, then the prosecution was upon cause . . ." [ 160 Miss. 797, 134 So. 164] In the Grenada case this court said: "The so-called bad check law does not cover the obtaining of goods where the goods had already been delivered, had passed completely out of the possession of the seller and away from him hands and premises in a previously completed transaction or transactions, although those transactions may have been at previous hours on the same day. There must be an exchange for the check at the time of de livery." [ 168 Miss. 826, 151 So. 744.]
(Hn 2) Under the evidence offered by the State in the case at bar Merrill was unwilling to lend $20 to the appellant and would not have parted with possession of the money without the issuance and delivery of the check. While the money was actually handed over to appellant before the check was handed to Merill, the proof for the State shows that the two deliveries were practically synchronous and were both a part of the same transaction. The transaction was not completed (as in the Grenada case) when Merrill handed over the $20 to appellant, and its completion was not affected until appellant went inside the service station, wrote out the check, and delivered it to Merrill. This case is different on the facts from Broadus v. State, Miss., 38 So.2d 692. In that case Broadus had promised on the previous day that he would pay cash for the equipment; his agent came with a truck, loaded the equipment thereon and left with the equipment before Broadus had even arrived on the scene. When Broadus came, some thirty minutes later, he delivered a check to his vendor, which check proved to be worthless; the vendor had parted with possession of the property and it had been removed from his premises and was en route to another county before Boardus came. As in the Grenada case the vendor did not part with possession of the property upon the faith of the check; the delivery of the property had been completed as a separate transaction prior to even a suggestion from Broadus that he would give a check in payment. We are of the opinion that in the case at bar, according to the evidence offered by the State, the obtaining of the money and the issuance and delivery of the check constituted one transaction and that the peremptory instruction was therefore properly refused.
The appellant also complains at the action of the trial court in granting to the prosecution the following instruction to the jury:
"The Court instructs the jury for the State, that the presentment of a check to the bank upon which it was drawn within thirty days after delivery thereof and there being in said bank upon which the check is drawn insufficient funds therein to pay said check in the makers name, is prima facie evidence of intent to defraud the payee thereof of the property for which the check was drawn; and in this case, if you believe from the evidence beyond a reasonable doubt that the defendant issued and delivered unto A.G. Merrill a check for $20.00 in exchange for $20.00 then received and said check was presented to the bank upon which it was drawn within thirty days after it was issued and delivered and that there was insufficient funds on deposit in said bank to the credit of John W. Moore with which to pay said check; then in that event there is made out by the State a prima facie case of an intent to defraud the witness A.G. Merrill by the Defendant John W. Moore of the $20.00 that was given for said check."
(Hn 3) We are of the opinion that the granting of this case was error. It is the general rule of law that when the facts appear presumptions recede and that the necessity for resorting to presumptions disappears when there is direct and positive evidence upon the matter in issue. The prosecution in this case produced evidence as to all the facts surrounding the transaction; the appellant testified in his own behalf and claimed that the $20.00 was loaned to him about two hours before he gave the check, and that when the check was given he told Merrill that he had no funds in the bank with which to pay it. Thus there was drawn a sharp issue between the prosecution and the defense. That issue was for the determination of the jury under proper instructions from the court. All the facts were in evidence for both the State and the defendant. While the State's case was for the jury, yet under the record here it was not an unusually strong case and the defendant produced a sufficient defense if believed by the jury. Under the facts here disclosed we feel that it was prejudicial error for the trial court to grant to the State an instruction to the effect that a prima facie presumption may be indulged in by the jury in support of and in addition to the evidence for the State.
In the case of Smith v. State, 161 Miss. 430, 137 So. 96, 98, this Court said: "The court gave the following instruction for the state, which action of the court appellant assigns and argues as error: `The court instructs the jury for the State that malice is implied by law from the nature and character of the weapon used and that the use of a deadly weapon in a difficulty and not necessarily in self-defense, is in law evidence of malice.' This instruction embodies a correct principle of law, but is not applicable to this case, for the reason that all the facts and circumstances of the homicide were in evidence. In such a case the presumption of malice, arising from the use of a deadly weapon, disappears. Cumberland v. State, 110 Miss. 521, 70 So. 695; Walker v. State, 146 Miss. 510, 112 So. 673."
Even in civil cases, where the plaintiff is required only to establish his case by a preponderance of the evidence instead of beyond a reasonable doubt, this court is committed to the rule that where all the facts are in evidence the plaintiff is not entitled to an instruction upon a prima facie case. Davis v. Temple, 129 Miss. 6, 91 So. 689; New Orleans G.N.R.R. Co. v. Walden, 160 Miss. 102, 133 So. 241; Eastman, Gardiner Co. v. Sumrall, 160 Miss. 792, 133 So. 212; Adams-Newell Lumber Co. v. Jones, 162 Miss. 517, 139 So. 315; Louisville N. R.R. Co. v. Cuevas, 162 Miss. 521, 139 So. 397. See also 9 Wigmore on Evidence, 3rd Ed., Sec. 2491.
The judgment of the lower court is therefore reversed and the cause remanded for another trial.
Reversed and remanded.