State v. Prettyman

191 P.2d 142, 113 Utah 36, 1948 Utah LEXIS 153

• Court: Utah Supreme Court
• Decided: March 15, 1948
• Docket: No. 7055.
• Status: Published

Opinions

WOLFE, Justice.

Appeal from a judgment of the Third District Court convicting defendant of the crime of drawing a check against insufficient funds, with intent to defraud, in violation of Sec. 103-18-11, U. C. A. 1943.

The facts in this case are largely without dispute. The uncontradicted evidence shows that on March 22, 1946, the defendant was registered at Covey’s Tourist Court under the name of Leland Douglas, and that he had been so registered there for about a month prior thereto; that during the time he was registered there he had been a regular patron of the Covey Coffee Shop; that on the date above mentioned he executed and cashed at the coffee shop a check in the amount of $20.00 drawn on the Uintah State Bank at Vernal, Utah; that neither at that time nor at any previous time had the defendant had any account or credit arrangement of any kind with the drawee bank; that the check was dishonored on presentation; that the defendant remained at the Covey Tourist Court for about eight days after executing the above-mentioned draft, but that he left before the dishonored paper was returned to the coffee shop.

The chief question in this case is whether or not defendant had an intent to defraud at the time he uttered the check. The evidence introduced by the defendant tended to show that he was engaged in a business enterprise with a Mr. Raymond, the exact nature of which is not shown by the record, but the general nature of which was apparently investment in oil lands in and around Vernal, Utah; that Mr. Raymond had promised that sufficient money would be deposited at any bank which the defendant would designate by wire, and that he would honor any drafts within reason; that within 24 hours after issuing this check defendant sent a wire to Raymond in Seattle, Washington, with the expectation that Raymond would send to the drawee bank sufficient funds to meet the check; that Raymond never received the wire; that Raymond died thereafter, but when his wife learned of the situation she immediately sent funds to meet the draft, thus honoring her deceased husband’s alleged agreement.

The assignment of error chiefly relied upon by defendant as grounds of reversal is that the court erred in denying defendant’s motion to dismiss the action on the ground that the state’s evidence was insufficient upon which to base a conviction.

In support of this proposition defendant first contends that he was charged

“* * * with intent to defraud Alvin B. McKean and Dean Kofoed, doing- business as Covey’s Coffee Shop * * *”

while the evidence shows that at the time of the alleged offense Alvin B. McKean had no interest in the Covey Coffee Shop except as an employee, and that his brother, T. Rex McKean, and Kofoed were the partners doing business as Covey’s Coffee Shop. Defendant contends that this amounts to a fatal variance or failure of proof.

As far as appears from the record, this point is raised for the first time in the case in this court. It is without merit. Sec. 105-21-18 (3), U. C. A. 1943, provides as follows:

“An erroneous allegation as to the person injured or intended to be injured shall not he material.”

The name of the person or persons injured constitutes no part of the crime. It is included in the information for the purpose of better describing and identifying the act with which defendant is charged. So long as the particular act is sufficiently described so as to enable the defendant to prepare his defense and to permit a plea of former jeopardy to be interposed in the event action is again brought, the information is sufficient and an error in name is not material. State v. McKee, 17 Utah 370, 53 P. 733; State v. Leek, 85 Utah 531, 39 P. 2d 1091. There has been no showing that defendant was prejudiced in the preparation of his defense, or that he is in danger of double jeopardy by reason of the mistake in name.

A more difficult question is raised by defendant’s contention that there was no evidence of criminal intent. Section 103-18-11, U. C. A. 1943, which defendant was convicted of violating, insofar as material here, is as follows:

“Any person who for himself or as the agent or representative of another or as an officer of a corporation, willfully, with intent to defraud, makes or draws or utters or delivers any check, or draft or order upon any bank or depository, or person, or firm, or corporation, for the payment of money, knowing at the time of such making, drawing, uttering or delivering that the maker or drawer or the corporation has not sufficient funds in, or credit with- said bank or depositary, or person, or firm, or corporation, for the payment of such checks, draft or order, in full upon its presentation, although no express representation is made with reference thereto, is punishable by imprisonment in the county jail for not more than one year, or in the state prison for not more than 14 years.

“The making, drawing-, uttering or delivering of such check, draft or order as aforesaid shall be prima facie evidence of intent to defraud.” (Italics ours.)

Defendant contends that the italicized portion of the above quoted statute creates a presumption, which disappears when rebutting evidence is adduced by the defendant, and therefore, since the state did not offer any rebutting evidence to the explanation offered by the defendant, there was no evidence of intent to defraud — an essential element of the state’s case. The portion of the statute here in question, seems never to have been construed by this court. However, a similar provision of our larceny statute, See. 103-36-1, U. C. A. 1943, has been considered by this court many times. That statute provides as follows:

“Larceny is the felonious stealing, taking, carrying, leading or driving away the personal property of another. Possession of property recently stolen, when the person in possession fails to make a satisfactory explanation, shall he deemed prima facie evidence of guilt” (Italics added.)

In State v. Potello, 40 Utah 66, 119 P. 1023, 1028, defendant was convicted of the larceny of a horse. Mr. Justice Straup, who wrote the main opinion held that upon proof of the larceny, recent possession in the accused, and failure of the accused to make a satisfactory explanation, the state had made a prima facie case. The conviction was reversed on the ground that the state failed to prove a larceny, and that the evidence of defendant, though tending to show a larceny, showed that it was committed by someone else. In view of the court’s holding that there was failure to prove one of the necessary elements necessary to bring the statutory provision of prima facie evidence of guilt into operation, any discussion of the effect or operation of the statute was probably mere dicta.

However, Mr. Justice Straup had this to say:

“Not that the jury, on such proven facts, though unrebutted or not discredited by circumstances, are required to convict if upon such proven facts they are not convinced beyond a reasonable doublt of the accused’s guilt, but that they, upon such proven facts, if unrebutted or not discredited by circumstances, may presume or infer the further fact of the felonious taking by the accused, and if, upon all the evidence adduced, they are convinced beyond a reasonable doubt of his guilt, may convict.”

In the case of State v. Converse, 40 Utah 72, 119 P. 1030, 1033, a companion case to the Potello case, the court discussed more fully the application and operation of the statute. In that case, defendant was convicted of the larceny of some plumes from a store in Ogden. The evidence adduced by the state showed that the plumes were unlawfully taken from the store; that about a week later defendant sold some of the plumes to a Salt Lake merchant; that several days later defendant offered to sell more plumes to the same Salt Lake merchant, who, being aware that the plumes were stolen, notified the Salt Lake police who arrested defendant. Defendant told the officers that he had purchased the plumes from a hobo in Murray, who had them in a gunny sack. Defendant gave the officers false information as to his residence.

Defendant admitted that he was in Ogden on the week end when the plumes were stolen; that he had spent the week end there at the home of one Craig; that he had spent the entire time he was in Ogden with Craig; that he went from Ogden to Murray where he purchased the plumes from an “Asyrian or Portuguese looking” fellow who had the plumes in a gunny sack and was peddling them. Two other witnesses testified to having seen defendant purchase and pay for the plumes from an individual described as above.

In addition to the evidence above outlined, it was shown that defendant had told the Salt Lake merchant to whom he sold the plumes, that he had bought them for his girl but had a row with her and had decided to sell them. The state’s rebuttal evidence showed that the train upon which defendant travelled to Ogden was on time, in contradiction to defendant’s testimony that it was more than an hour late.

Defendant in that case, as the defendant in the case at bar, contended that the rebutting evidence was so strong that the prima facie case which the state had proved under the statute by proving larceny, recent possession, and unsatisfactory explanation, was wiped out. The court speaking through Mr. Justice Straup, treated the statute as creating a statutory presumption, but held that the presumption was not overthrown even though the testimony of defendant was corroborated by two disinterested witnesses who were neither impeached nor discredited. Said the court:

“If the direct evidence controverting the presumption is not conflicting nor uncertain, if reasonable minds may not differ with respect to the conclusion to be deduced therefrom, then undoubtedly the question is for the court. The jury, in such case, could not be permitted to disregard such direct evidence, or, as against it, base a finding of the fact upon the mere presumption. If, on the other hand, the direct evidence with respect to the presumed fact is itself in conflict or is uncertain, or if reasonable minds may differ with respect to the conclusions to be deduced from the direct evidence, that is, if there is some direct evidence in support of the presumption and some against it, or if the direct evidence claimed to be against it is uncertain, or open to different conclusions, then the question of whether the ultimate fact should be found in accordance with the presumption or against it is for the jury.”

And again:

“If the evidence with respect to the explanation is uncertain, or is in conflict, or is open to different conclusions, or is in itself improbable or doubtful, or, as is often said, if reasonable minds may differ with respect to the conclusions or inference to be drawn from it, the question is one for the jury. If, on the other hand, the evidence with respect to it is consistent with innocence, is in itself reasonable and probable, and bears no mark of suspicion or fabrication, and is not contradicted by evidence other than the mere presumption referred to, then the jury may not disregard such evidence and determine the fact upon the mere presumption.”

In State v. Barretta, 47 Utah 479, 155 P. 343, 346, again speaking through Mr. Chief Justice Straup, we said:

“The Legislature adopted the statute which, as we said in the Potello Case, in the absence of other evidence, to make a prima, facie case required proof of three things, the larceny, recent possession in the .accused, and an unsatisfactory explanation of his possession. When these are shewn, the court is not justified in withholding the, case from the jury.” (Italics in last sentence ours.)

“Of course, the jury, upon the matters alone which the statute declares is a prima facie case, may find the accused guilty, if they, upon such proof, are convinced beyond a reasonable doubt of his guilt. But just as certain is it that they, if not so convinced, are required to acquit him, though such matters may not even be disputed or contradicted by any evidence whatever.”

For a discussion of the question here involved see also the opinion of Mr. Justice Ephraim Hanson, concurring in part, and dissenting in part, in Peterson v. Sorenson, 91 Utah 507, 65 P. 2d 12, 21. In that case, Sec. 42-1-54 of the Workmen’s Compensation Act was involved:

“Proof of the injury shall constitute prima, facie evidence of negligence on the part of the employer and the burden shall be upon the employer to show freedom from negligence resulting in such injury.” (Italics ours.)

In the instant case, the statute provides that proof of certain facts (i. e., the other elements of the offense) shall be prima facie evidence of intent to defraud. The effect of the statute is to make proof of certain facts a prima facie case. The introduction of rebutting evidence does not if so facto destroy or wipe out the state’s prima facie case. Of course the defendant may introduce such strong evidence that no reasonable mind could disbelieve it — evidence so overwhelming that the court must say that as a matter of law the defendant has established a good defense. But this is true in every case, whether civil or criminal. It is not something unique or peculiar to this type of case merely because the statute in this case provides that proof of certain facts shall be prima facie evidence of another fact essential to the state’s case. It applies in all cases. But before the case may be taken from the jury, the evidence adduced in behalf of the defendant, must, at least, be consistent with innocence, be reasonable and probable, bear no mark of susficion or fabrication, and be uncontradicted. State v. Converse, supra.

It may be conceded that the defendant’s evidence is consistent with innocence, that it is not improbable or unreasonable — at least not so improbable as to be impossible of belief — and that it is uncontradicted. But can we say that it bears no mark of suspicion or fabrication?

The check here involved was uttered in March, the defendant was arrested in June, and the check was not “made good” by Mrs. Raymond until August.. These facts might well suggest to the minds of the jurors that there was no antecedent agreement between defendant and Raymond and that defendant persuaded Mrs. Raymond to come to his rescue after he got into trouble. The very fact that Raymond and defendant failed to keep in touch with one another at a time when they were engaged in a joint business venture (for the financial support of which defendant relied entirely upon Raymond), casts some doubt and suspicion upon the authenticity of the explanation offered by defendant.

Prettyman’s testimony was that he last saw Raymond in Salt Lake City in the latter part of January or early part of February, 1946, at which time Raymond agreed to cover drafts in any reasonable amount drawn by defendant. Some time thereafter, Prettyman received $300.00, and at another time $50.00, by wire from Raymond. Early in March, Prettyman talked with Raymond by telephone, Raymond being then in the Herald Hotel in Seattle. The check here in question was drawn the latter part of March, and according to defendant’s testimony, he notified Raymond by wire the next day at the Hungerford Hotel, Seattle. He received no reply to this wire. He did not send any communication to the Herald Hotel, although that was where Raymond was living at the time Prettyman was last in communication with him. And although Prettyman was wholly dependent upon Raymond for funds to finance their business venture, the two men were never in communication after their telephone conversation of early March. Thereafter, it appears that neither was ever aware of the whereabouts of the other — a rather unusual situation, to say the least, in view of the fact that they were engaged in a business venture together.

The jury is entitled to draw on its general experience in life, and in analyzing defendant’s explanation, it might have taken into consideration the fact that banks will not ordinarily honor the checks of persons having funds in such banks unless such persons have on file with the bank a signature card. So that even if Raymond had deposited funds in the drawee bank, Prettyman probably could not have drawn on them, without having first filed with the bank a signature card. The jury might take this into consideration and conclude that no businessman would enter into such arrangement as testified to by defendant.

With all of the above factors taken into consideration, it cannot be said that the defendant’s evidence was so free of suspicion that a jury would be bound to believe it. The case was properly submitted to the jury.

Defendant next contends that the prosecuting attorney committed prejudicial error by frequent and improper reference to defendant’s prior criminal record, and the fact that he was on parole.

On cross-examination defendant was asked, over objection of his counsel:

“What other names have you gone by, Mr. Prettyman?”

The subsequent examination revealed that besides going by the name of Leland Douglas, defendant had also used the name of L. D. Travers, which was really his own name with the surname left off. He denied the use of any other alias. We see no prejudice arising to defendant out of this question. State v. Miller, 164 Wash. 441, 2 P. 2d 738; People v. Kelly, 146 Cal. 119, 79 P. 846.

The District Attorney also asked this question:

“Weren’t you arrested for leaving the state without permission under your parole?”

The defendant answered:

“It was in conjunction with that.”

On motion of defendant’s counsel, the answer was promptly stricken by the court, and the jury was admonished to disregard it. Defendant argues that striking the answer from the record would not erase it from the minds of the jury. If he felt that the error could not be corrected by striking the answer, he should have moved for a mistrial. Moreover, the prejudicial matter came in as a result of laxity on the part of defendant or his counsel. Had objection been made before the answer was given, instead of afterward, the answer would never have been given. Defendant is in no position to complain of this matter. There was no error in that regard.

Defendant also complains of various rulings on evidence. On cross-examination over defendant’s objection, the prosecuting attorney was permitted to ask defendant how many other drafts he had drawn. In the recent case of State v. Scott, 111 Utah 9, 175 P. 2d 1016, it was pointed out that evidence of other and independent crimes of the same nature as that for which defendant is being tried is not admissible if it is relevant only for the purpose of showing defendant’s disposition to commit such a crime. This is an exception to the overarching principle that all evidence having probative value is admissible. But evidence of other criminal or wrongful acts is admissible if it tends to prove any of the elements of the crime charged. State v. Nemier, 106 Utah 307, 148 P. 2d 327. In forgery and embezzlement cases, evidence of other crimes of the same nature is admissible to show criminal intent. State v. Judd, 74 Utah 398, 279 P. 953; State v. Green, 89 Utah 437, 57 P. 2d 750. The same rule should apply in insufficient funds checks cases. But in the case at bar, the prosecuting attorney did not establish that the other checks drawn by defendant were insufficient funds checks. It was thus left to the jury to infer that the other checks drawn by defendant were insufficient funds checks. We assume that by inadvertence the presecuting attorney neglected to complete his questioning on this point. However, we wish to point out that this might gravely prejudice the defendant in some cases, since the jury is left to draw inferences which may be unfair to defendant. The prosecutor should be careful not to leave points such as this “hanging in the air.” However, it was not prejudicial error in this case. If the other checks uttered by defendant were in fact insufficient funds checks, no harm was done. On the other hand, if the other checks were in all respects good, defendant could have so shown on redirect examination. Not having done so, nor having offered to do so, he cannot now complain.

At the beginning of his case in chief defendant offered the deposition of Mrs. Raymond. Most of it was refused at that time. However, after the defendant had testified, the deposition was again offered, and all of the testimony was received except a part of the answer to the last question, of which no complaint is made here. So even if the court erred in the first instance in refusing to receive part of the deposition (and this we doubt), such error was cured by admitting the excluded portions at a later stage of the trial.

Other errors have been assigned, but not being argued in the briefs, they are deemed waived. Parry v. Harris, 93 Utah 317, 72 P. 2d 1044; Duncan v. Hemmelwright, 112 Utah 262, 186 P. 2d 965.

There was no error. The judgment is affirmed.

McDonough, c. j., concurs.