State v. Kaufman, 29779

• Decision Date: 19 December 1957
• Docket Number: No. 29779,29779
• Citation: 308 S.W.2d 333
• Parties: STATE of Missouri (Plaintiff), Respondent, v. Herb KAUFMAN (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 333

308 S.W.2d 333

STATE of Missouri (Plaintiff), Respondent, v. Herb KAUFMAN (Defendant), Appellant.

No. 29779.

St. Louis Court of Appeals, Missouri.

Dec. 19, 1957.

Cecil Block, St. Louis, for appellant.

Paul E. Williams, Bowling Green, for respondent.

RUDDY, Presiding Judge.

Defendant was found guilty by the trial court of making and delivering, with intent to defraud Chester E. Phillips of articles or things of value, a check to the said Chester E. Phillips in the sum of $2,000, when he (defendant) knew at the time of making and delivering said check that he did not have sufficient funds in or credit with the bank on which said check was drawn. Punishment was assessed by the court at confinement in the Pike County Jail for a period of three months. Defendant has appealed. He has filed no brief. In the absence of a brief from the defendant, we will consider the formal parts of the record (Supreme Court Rule 28.02, 42 V.A.M.S.). In addition thereto, we will consider such assignments of defendant's motion for new trial as sufficiently comply with Supreme Court Rule 27.20, 42 V.A.M.S. State v. Drake, Mo., 298 S.W.2d 374; State v. Poucher, Mo.App., 303 S.W.2d 197.

The trial of this case was without a jury, the defendant having filed a written waiver of trial by jury, with the assent of the court, pursuant to Supreme Court Rule 26.01, 42 V.A.M.S.

The information follows the wording of the statute and alleges all the facts necessary to bring the defendant within the provisions of Sec. 561.460 (all statutory references are to RSMo and V.A.M.S.). The effect of this statute is to make it a crime for anyone who has procured any article or thing of value to make, draw, utter or deliver a check, with intent to defraud, knowing at the time that he did not have sufficient funds on deposit, or credit with the bank on which the check was drawn.

The reviewable assignments contained in defendant's motion for new trial require a statement of the facts. Chester E. Phillips lived on a farm near Louisiana, Missouri, and was employed as a welder at the Hercules Powder Company. Phillips sold the defendant some scrap iron which was loaded on freight cars and shipped to a destination assigned by defendant. Some of the cars were loaded and shipped in December 1955 and some in early January 1956. Subsequently, a controversy arose between the parties about the quality of some of the scrap iron. This controversy was settled in a discussion that took place in the office of the defendant in University City, Missouri. On the occasion of this controversy and settlement which took place on January 24, 1956, the defendant gave Phillips a check for $3,090.20. This check was deposited immediately by Phillips and was returned unpaid because payment had been stopped by the defendant. However, on January 25, 1956, the defendant visited Phillips at his place of employment in Pike County, Missouri, and gave Phillips two checks to replace the check previously given. These checks were dated January 25, 1956, and were for $1,090.20 and $2,000 respectively. They were drawn on the State Bank and Trust Company of Wellston, Missouri. They were deposited immediately and both checks were returned unpaid by the drawee bank. However, the check for $1,090.20 was paid later by Western Union money order. The information filed in this case is based on the $2,000 check.

The evidence showed that the check which forms the basis of this case had printed on it 'International Industries, Inc.' The check was signed 'Herb Kaufman' without anything more. Phillips testified that he was dealing with Kaufman individually and knew nothing about a corporation.

Andrew J. Murphy, Jr., an attorney with offices at Louisiana, Missouri, was employed by Phillips to collect the sum due on the two checks that were returned unpaid. The attorney talked to Kaufman by phone on February 3, 1956, and he told defendant the $2,000 check had been dishonored by the bank and returned unpaid and that the same was true of the check for $1,090.20. This telephone call was made by Kaufman in answer to a telephone call of Mr. Murphy. Kaufman told Mr. Murphy that he was calling from a mobile unit which he had in his car and in this conversation he assured Mr. Murphy that he had wired, via Western Union, the sum of $2,000 to pay one of the checks. As stated before, the check for $1,090.20 was subsequently paid by a Western Union money order, but the $2,000 check was never paid. Thereafter, on August 9, 1956, the information forming the foundation of the instant proceeding was filed.

Albert W. Lakebrink, Assistant Treasurer and Manager of the Bookkeeping Department of the State Bank & Trust Company of Wellston, testified that he had custody and control of the records of the bank relating to deposits and credits and debits to the accounts of the customers of the bank. His testimony showed that the $2,000 check had been presented to the bank for payment and that payment was refused because the defendant had insufficient funds in the account to cover the amount of the check. State Exhibit 3 was identified by this witness as the ledger account of the defendant. This record showed that at the close of business January 24, 1956, the defendant had a balance of $510.46 in his account. This was the date the check for $3,090.20 was delivered. On January 25, 1956, the date the $2,000 check and $1,090.20 check were delivered, defendant had a balance of $360.46 and the largest balance thereafter was $947.29. The account was closed by the defendant May 18, 1956. The $2,000 check was presented for payment on January 30, 1956. On that date defendant had a cash balance in his account of $160.29.

The ledger account (Exhibit 3) was carried under the name 'International Industries.' State Exhibit 2 was identified by witness Lakebrink as a signature card. The part of this card pertinent to the issues in this case shows the account in the name of 'International Industries' and the card was signed by 'Herb Kaufman' with the notation 'sole owner.' Lakebrink testified that only checks bearing the signature 'Herb Kaufman' would be paid out of this account.

An examination of the ledger account discloses overdrafts in this account between December 22, 1955, and the date the account was closed. The largest overdraft occurred January 10, 1956, and was in the amount of $1,966.74. However, the very next day $5,000, was deposited. Thereafter, other overdrafts appear, the largest being $183.72.

In the course of direct examination, witness Lakebrink was asked if Kaufman had sufficient credit with the bank to cover the check. However, defendant objected to the question and was sustained by the court. The purport of this question was not covered in any other part of his testimony. Therefore, there was no direct testimony on the existence of sufficient credit to cover the check. There was no evidence offered by the defendant.

We will now direct our attention to the assignments contained in defendant's motion for new trial that state the specific grounds or causes in detail and with particularity. The first assignment alleges the information is fatally defective in that it fails to charge the defendant with a violation of any of the laws of the State of Missouri. We have pointed out hereinbefore that the information follows the wording of Sec. 561.460 and alleges all the facts necessary to bring the defendant within the provisions of said section. The information charges the defendant individually with making and delivering the check. We think the information is sufficient in this respect and the proof tendered by the State sufficiently demonstrates that the act of making and delivering the check in question was defendant's individual act and that the check was drawn against his individual account in the bank. Phillips testified that he was doing business with Kaufman as an individual and knew of no company or corporation in the business deal. The records of the bank introduced in evidence showed the account to be that of Herb Kaufman, the defendant in this case. The signature card showed Herb Kaufman as the 'sole owner' of the account carried under the trade name 'International Industries.' The signature card signed by the defendant demonstrated beyond a doubt that this was an individually owned bank account of Herb Kaufman and that he was doing business under a trade name. The check that forms the basis of this prosecution was not signed by Kaufman as an officer of a corporation. He signed it as an individual and without any other description.

We rule there is sufficient evidence to establish the check as that of Herb Kaufman individually and sufficient to support the description of the check in the information. We further rule that the evidence is sufficient to show that the check was drawn on the account shown in State Exhibit 3, which is the bank account opened by defendant when he signed the signature card--State Exhibit 2. The information is not defective and sufficiently charges the defendant with a violation of Sec. 561.460.

The next assignment is that the court lacked jurisdiction over the subject matter and over the person of defendant. During the trial counsel for defendant contended that the venue was in St. Louis County and not in Pike County because the original check for $3,090.20 given in payment of the scrap iron was delivered in St. Louis County. There is no validity to this contention. The check that constitutes the basis of the offense charged was for $2,000 and was delivered in Pike County.

The next assignment is that the check was returned by the bank marked 'Drawn against uncollected funds,' whereas, the information charged insufficient funds or credit. Witness Lakebrink testified the check was returned because of insufficient funds in defendant's bank account. This was sufficient proof of the charge that the check was returned because of insufficient funds. The evidence clearly shows the...