Galbreath v. State

• Decision Date: 06 November 1989
• Docket Number: No. A89A1545,A89A1545
• Citation: 387 S.E.2d 915,193 Ga.App. 410
• Parties: GALBREATH v. The STATE.
• Court: Georgia Court of Appeals

Page 915

387 S.E.2d 915

193 Ga.App. 410

GALBREATH v. The STATE.

No. A89A1545.

Court of Appeals of Georgia.

Nov. 6, 1989.

Charles J. Vrono, for appellant.

Robert E. Wilson, Dist. Atty., Michael D. Thorpe, and Robert M. Coker, Asst. Dist. Attys., for appellee.

BIRDSONG, Judge.

Appellant Albert Monroe Galbreath appeals his sentence and conviction of one count of making and delivering a $4,000 bad check.

Appellant negotiated the purchase of a 1988 Porsche automobile. On November 18, 1987, appellant's loan application was approved for bank financing, but only for the invoice value of the car. Appellant was notified that he would be required to make a sizeable downpayment in order to finalize the purchase transaction.

At trial the business manager of the automobile dealership testified as follows: Appellant was notified at about 1:00 or 2:00 p.m. on November 18 that his loan had been approved, but that he needed to bring a cashier's check in the amount of $6,000 to the dealership as a downpayment. Appellant did not arrive at the dealership that evening until after normal banking hours between approximately 5:00 or 5:30 p.m. After signing all necessary transaction documents, including the installment contract, appellant was asked for the cashier's check, but he did not have it. Appellant expressly informed the business manager that he had $4,000 of the money in a bank account, and upon being paid a week from the coming Friday he would have the remainder. Appellant and the business manager agreed that appellant could tender two checks in the amounts of $4,000 and $2,000, respectively. The business manager, after consultation with the dealership's sales manager, further agreed that the bank would hold the check for $2,000 until November 27. The dealership as a general policy never accepts postdated checks; customers are asked to date checks to be held as of the date of tender. The $2,000 check was postdated "11/27/87" by appellant, and the $4,000 check was postdated "11/19/87." The business manager previously had asked appellant to date both checks as of the date of tender, November 18. She was unaware that appellant had postdated the checks, and stated "[o]bviously that slipped by me." Appellant represented to her that the $4,000 check was good; at no time did she represent to appellant in any way either that he could postdate the $4,000 check or that she would hold it for him. Appellant accepted delivery of the automobile that evening. The business manager would not have accepted the $4,000 check and given appellant possession of the car if he had told her the check for $4,000 was not good when tendered. On November 19, the next day, appellant's $4,000 check was taken to the dealership's bank for deposit; the check twice was presented for payment and each time returned for nonsufficient funds. Subsequently, the $2,000 check was returned for nonsufficient funds after it was presented on November 27. The business manager attempted to contact appellant at home, but his phone was disconnected; when the business number given by appellant was called, the business manager was informed appellant did not work there. On his credit application, appellant listed himself as a "supervisor" with Atlanta Boring & Tunneling; he never asked the business manager to put on the application that he was self-employed. Attempts to reach appellant through his parents' home and his mother's place of employment were to no avail. A certified letter of notification that the two checks had been dishonored was returned as "unclaimed." A letter of notification sent to the employment address on appellant's credit application was returned with the notation, "[e]mployee does not work here anymore." Appellant has never made either check good. The car was repossessed several months later; it had some body damage that was repaired, and approximately 15,000 miles on the odometer. The car had 40 miles on the odometer when delivered to appellant. Appellant never told the business manager that he would honor the checks if the car title was accurately corrected.

Appellant testified that he had told the business manager that he did not have the $6,000, but that he would be getting paid. He requested and she agreed to hold his two checks. The $4,000 check was to be held until Friday, November 20, and the $2,000 check was to be held until Friday, November 27. He could have paid the checks from other bank accounts, but a dispute arose over the wording of the title when the bank refused to add the word "Jr." to the name thereon. He never was notified that a certified letter was waiting for him at the post office. However, appellant made a judicial admission that when he tendered the two checks, "[he] knew that [he] didn't have the money then." Appellant's testimony, that he told the business manager that he was postdating both checks and that she agreed to hold them for him, was corroborated by his ex-fiancee. Held:

Appellant's sole enumeration of error is that the trial court erred in denying his motion for directed verdict of acquittal. Primarily, appellant asserts that under the precedent of Bivens v. State, 153 Ga.App. 631, 266 S.E.2d 304, he cannot be found guilty of violating OCGA § 16-9-20, because the $4,000 check was postdated, and thus the State cannot establish as a matter of law that appellant had the present fraudulent intent necessary at the time the check was tendered.

In Neidlinger v. State, 17 Ga.App. 811(2), 88 S.E. 687, this court, in construing the bad check act of 1914, concluded that "[t]he statute was not intended to cover a [postdated] check accepted by the payee with distinct knowledge that the paper constitutes nothing more than a promise that, on the future date specified as the day of payment, the drawer will have in the bank the funds necessary to meet the check." (Emphasis supplied.) The court further observed, that "[i]n drawing a [postdated] check there is an implication either that there is no present consideration (as where a trade is not to be finally consummated until the day named in the check), or an implication that payment is postponed because the drawer has not, at the time the check is drawn, sufficient funds to meet it. In either event the check is merely a promise to pay in the future. One who knowingly takes a [postdated] check, under the circumstances ... in this case, and exchanges an article of value therefor, makes the exchange not upon his faith that the drawer has at the time sufficient funds to meet the check, but upon his willingness to risk the ability of the drawer to make a deposit and to have in bank, on or after the date mentioned in the check, sufficient funds with which to comply with his obligation." (Emphasis supplied.) Id. at 815, 88 S.E. 687.

The case before us clearly is distinguishable from the facts in Neidlinger. First, appellant took delivery of the automobile on the same day as he tendered the postdated check, thus there existed present consideration. Secondly, the implication inherent in a postdated check, that the drawer currently has insufficient funds to cover the amount in the draft, was directly contradicted by appellant's express assertions to the business manager that he had $4,000 currently in the bank and that the $4,000 was good. Further, continuing to construe the evidence to support the verdict as we are required to do on appeal, we find that unlike the Neidlinger circumstances, the dealership and its agent did not knowingly accept a postdated $4,000 check from appellant.

In Strickland v. State, 27 Ga.App. 772, 110 S.E. 39, in construing the bad check act of 1919, this court followed the precedent of Neidlinger. The facts in Strickland show that the payee was fully apprised that the tendered check was postdated. Id. The court opined that " '[t]he statute was not intended to cover a [postdated] check accepted by the payee with distinct knowledge that the paper constitutes nothing more than a promise that, on the future date specified as the day of payment, the drawer will have in the bank the funds necessary to meet the check.' " (Emphasis supplied.) Id. at 773, 110 S.E. 39. Moreover, this court interpreted the requirements of the 1919 act as being consistent with its holding in Neidlinger, "that one cannot be criminally liable for giving a worthless [postdated] check, for [the act's] provisions as to checks or other papers therein mentioned are confined to such papers as are accepted with knowledge 'at the time of such making, drawing, uttering or delivery, that the maker or drawer has not sufficient funds in or credit with such bank ... for the payment of such check.' " (Emphasis supplied.) Id. at 773, 110 S.E. 39. In White v. State, 27 Ga.App. 774, 110 S.E. 40, this court followed the precedent of Strickland in a situation where the postdated check was drawn at the payee's request. The court in White expressly noted that "[a]t the time [appellant] drew the check, he stated to the payee that he had no funds in the bank at the time, but hoped to have such funds by the maturity of the check." Id. The facts of this case clearly are distinguishable from both Strickland and White, as the payee's agent testified she did not knowingly accept a postdated check, that appellant expressly told her the check was good, and that appellant told her that he then had $4,000 in the bank.

In Highsmith v. State, 38 Ga.App. 192, 143 S.E. 445, the facts show that the payee "agreed with the defendant to hold the check for two weeks before presenting it to the bank" and that the defendant never told the payee that he had no money in the bank with which to pay the check. Id. at 193, 143 S.E. 445. This court held that the gravamen of a bad check offense under the act of 1919 "is the 'intent to defraud' [cit.]; and since the [payee] testified that he accepted the check under an agreement that he would not collect it for two weeks, the transaction was nothing more nor less than an...