Elliott v. Caheen Bros., Inc., 6 Div. 980.

• Citation: 153 So. 613,228 Ala. 432
• Decision Date: 08 March 1934
• Docket Number: 6 Div. 980.
• Parties: ELLIOTT v. CAHEEN BROS., Inc., et al.
• Court: Alabama Supreme Court

153 So. 613

228 Ala. 432

ELLIOTT v. CAHEEN BROS., Inc., et al.

6 Div. 980.

Supreme Court of Alabama

March 8, 1934

Rehearing Denied April 5, 1934.

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Action for malicious prosecution by Sarah Elliott against Caheen Bros., Inc. and William T. Wingo. From a judgment for defendants, plaintiff appeals.

Affirmed.

W. A Denson, of Birmingham, for appellant.

Cabaniss & Johnston and L. D. Gardner, Jr., all of Birmingham, for appellees.

BOULDIN Justice.

The cause was tried on counts for malicious prosecution. The trial court gave the affirmative charge, requested in writing, for defendants.

The prosecution was for violation of the Bad Check Law, which, as applicable to this case, reads: "Any person who * * * with intent to defraud shall * * * draw or utter * * * any check * * * upon any bank * * * knowing at the time of such * * * drawing uttering * * * that the maker or drawer has not sufficient funds in or credit with such bank * * * for the payment of such check * * * although no express representation is made in reference thereto and shall obtain therefor any * * * merchandise * * * shall be guilty of a misdemeanor." Code, § 4159, as amended, Acts 1927, page 287.

In any prosecution under the above section, proof that payment was "refused by the drawee because of lack of funds or credit, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in or credit with such bank." Code, § 4160, as amended, Acts 1927, p. 287.

Without dispute, the plaintiff purchased merchandise from defendant Caheen Bros., Inc., and gave a check therefor on the First National Bank of Birmingham, payment of which was refused by said bank for insufficient funds, and the check returned to the payee. These facts were known to defendant Wingo, the duly authorized agent of the payee, who thereafter instituted the prosecution.

Facts which, under the law, constitute prima facie evidence of guilt, furnish probable cause for beginning a prosecution. This is too self-evident to need elaboration. Unless other facts or circumstances, known to the prosecutor, are sufficient to overcome this presumption, in the mind of a reasonably prudent and just man, the prosecution is supported by probable cause.

Appellant relies mainly on the following facts in this connection:

Plaintiff had given two checks for merchandise, one for $8 and one for $3.50, dated December 15th and 17th, both of which were refused payment for insufficient funds. Later, according to plaintiff's version, she went to the defendant's store, paid and took up the $8 check, and was advised the other check was then in the hands of a collection agency, and it was agreed the check would be recalled, and plaintiff would take it up on being notified it was in hand, and that she was never so notified until after prosecution began, based on this $3.50 check.

Just what date the $8 check was taken up is not clear, but admittedly after receipt of a letter of date December 27th, notifying plaintiff the two checks had been returned for insufficient funds, and they would be again deposited on the 28th, with request that plaintiff see they were paid when presented at the bank.

The version of Mr. Wingo, the credit manager, is that, after the checks had been returned the second time, and were put in the hands of the Bodeker Agency, it was arranged for the checks to be recalled, which was done; and thereupon plaintiff took up the $8 check, and promised to take up the $3.50 check later; that thereafter two letters, one on February 4th and one on March 2d, following, were written to plaintiff demanding payment, without result.

Prosecution was begun March 8th.

We consider the evidence most favorable to plaintiff in passing upon the affirmative charge given for defendants.

Certainly the offer to take up, or actual taking up, the dishonored check, does not purge the transaction, if violative of the statute at the time the check is given.

A former statute, construed as making its violation turn on nonpayment or nonrestoration within a prescribed time after notice of dishonor, was declared unconstitutional. Goolsby v. State, 213 Ala. 351, 104 So. 901.

The real inquiry is: Does the payment for the merchandise, or taking up the check, or offer to do so within a reasonable time after notice of dishonor, negative any intent to defraud in giving the check, and so overcome the statutory presumption as to negative probable cause in the institution of a prosecution?

Our study of the wording of our statute in the light of its history, and...