Opinion
8 Div. 84.
March 30, 1971.
Appeal from the Morgan County Court, C. Bennett McRae, J.
J. Leslie Doss, Jr., Decatur, for appellant.
That no person shall be imprisoned for debt. Art. 1, Sec. 20, Constitution of 1901. After submission of cause on evidence for final judgment and trial completed, the court's discretion to set aside submission and reopen case for another trial is at an end. Ex parte Alabama Marble Co., 216 Ala. 272, 113 So. 240. The rule is that, in reviewing the trial court upon questions of fact, based upon oral testimony, the appellate courts will review the conclusions reached, on the same basis that the verdict of a jury will be reviewed, when a motion is made to set aside the verdict as being contrary to the weight of the evidence. But in no case, on review, will an affirmance be ordered where either the finding of the trial court without a jury or the verdict of a jury is against the great weight or preponderance of the evidence and repugnant to good conscience and fairness. McKenzie v. State, 25 Ala. App. 586, 151 So. 619.
MacDonald Gallion, Atty.Gen., and Joseph G. L. Marston, III, Asst.Atty.Gen., for the State.
In a prosecution for obtaining property by the issuance of a worthless check, with the intent to defraud, the uttering of a check whose payment is refused, is prima facie evidence of the uttering party's intent to defraud. Code of Alabama 1940 (Recompiled 1958) Title 14, Section 234(5); Holloway v. State, 38 Ala. App. 501, 88 So.2d 700. In a prosecution for obtaining property by the issuance of a worthless check, with the intent to defraud, the defendant is not denied due process of law by the court's accepting the non-payment of the check in question as prima facie evidence of the defendant's intent to defraud, if the defendant is allowed to testify to his intent at the time he issued the check. Irvin v. State, 44 Ala. App. 101, 203 So.2d 283; Goolsby v. State, 213 Ala. 351, 104 So. 901. No judgment of conviction may be reversed for harmless error. Rule 45, Supreme Court Rules.
The appellant was convicted of the offense of issuing worthless checks in violation of Act. No. 566, November 19, 1959, (Title 14, Sec. 234(4) unofficial recompiled Code 1958).
It is undisputed in the evidence that defendant bought deliveries of minnows from the prosecuting witness, C. W. Gheen, on three separate dates in April of 1969. Three checks drawn on the First National Bank of Decatur on the following dates in April, 1969: April 17, $502.50; April 23, $700.00; April 30, $725.00, in payment for the minnows were returned unpaid for insufficient funds.
The defendant testified he had previously informed Mr. Gheen of his financial status and told him if any checks were returned to notify him and he would make them good. He gave Mr. Gheen a check for $457.00 and payment was refused and he paid Mr. Gheen the money. However, he did not tell Mr. Gheen that he did not have the money in the bank when he gave him the three checks in question.
Mr. Gheen, on cross examination, admitted he had received a check for $457.00 from defendant on April 11, 1969, which was subsequently returned by the bank and paid by the defendant; that defendant told him he had changed banks and it might be returned. Mr. Gheen stated he considered the amount owed him to be an open account and admitted filing a claim for the amount of the checks in the bankruptcy court.
At the close of the state's case defendant moved to exclude the evidence on the ground that no intent to defraud was proven. The overruling of this motion was not error. Section 234(5) Title 14, Code, supra, provides:
"As against the maker or drawer thereof, the making, drawing, uttering or delivering of a check, draft, or order payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in or on deposit with, such bank, person, firm or corporation."
The undisputed evidence made out a prima facie case against the defendant.
During the presentation of the state's case, the state sought to introduce into evidence the checks in question. Defense counsel objected to the introduction of the checks until there was an opportunity to cross examine the complaining witness or to take him on voir dire. The court reserved a ruling until after cross examination, and the checks were marked for identification only. After judgment was rendered, sentence pronounced and notice of appeal given, defense counsel reminded the court that the checks were never introduced. Thereupon the court stated it would "ex mero motu reopen and admit these checks into evidence, these exhibits 1, 2 and 3 of the State." Defense counsel objected to the reopening of the case and the admission of the checks in evidence.
Title 7, Section 252, Code 1940, provides:
"The court may, at its discretion, at any time before the conclusion of the argument, when it appears to be necessary to the due administration of justice, allow a party to supply an omission in the testimony on such terms and under such limitations as the court may prescribe."
This statute applies in criminal cases, Pugh v. State, 239 Ala. 329, 194 So. 810; Nichols v. State, 276 Ala. 209, 160 So.2d 619; Jessup v. State, 43 Ala. App. 517, 194 So.2d 570.
There was error here in reopening the case for the introduction of this evidence. Davis v. State, 20 Ala. App. 463, 103 So. 73; Alabama Great Southern R. Co. v. Smith, 209 Ala. 301, 96 So. 239; Ex parte Alabama Marble Company, 216 Ala. 272, 113 So. 240. However, the defendant admitting signing the checks and that payment was refused by the bank. The cases were tried before the court, sitting without a jury. The record clearly shows the checks were exhibited to the court and were before him during the trial. The error in allowing them to be formally introduced later was without injury to defendant. Supreme Court Rule 45.
A separate case was made for each of the three checks, but by agreement they were tried together and consolidated for appeal.
Defendant was adjudged guilty and was sentenced to hard labor for thirty days as punishment. Title 14, § 234(7) Code, supra, expressly provides for the imposition of hard labor on the second or any subsequent conviction of such offense, when the conviction arises out of the issuance of a check dated subsequent to the date of the conviction of the first offense.
The record is silent as to a previous conviction and fails to show that the present conviction arose out of the issuance of a check dated subsequent to the date of any prior conviction. The sentence to hard labor is unauthorized.
The judgment is affirmed but the cause is remanded for proper sentence.