Hall v. State

• Decision Date: 05 September 1979
• Docket Number: No. 34854,34854
• Citation: 244 Ga. 86,259 S.E.2d 41
• Parties: HALL v. The STATE.
• Court: Georgia Supreme Court

Page 41

259 S.E.2d 41

244 Ga. 86

HALL v. The STATE.

No. 34854.

Supreme Court of Georgia.

Argued May 15, 1979.

Decided Sept. 5, 1979.

Hodges & Erwin, William A. Erwin, Albany, for appellant.

William S. Lee, Dist. Atty., for appellee.

HILL, Justice.

Rosa Hall was indicted and convicted on eight counts of the offense of bad check. She was sentenced to 12 months on each count, the sentences to run consecutively. In this appeal, she raises 12 enumerations of error.

Code Ann. § 26-1704 (Ga.L.1975, pp. 482, 483, as amended by Ga.L.1977, pp. 1266, 1267-1268) makes criminal the issuance of a bad check in exchange for present consideration by a person who knows the check will not be honored by the drawee. The statute then goes on to create 2 presumptions of knowledge that the check would not be honored. ¹ The first is that where the accused had no account with the drawee at the time of making the check, this fact is prima facie evidence of knowledge that the check would not be honored. Code Ann. § 26-1704(a)(1). The second provides for a presumption of such knowledge where the check was presented to the drawee within 30 days of delivery and payment was refused, and the accused has not paid the amount due on the check plus a specified service charge within 10 days after the accused received written notice that payment was refused by the drawee. Code Ann. § 26-1704(a) (2). The statute then provides that: "Notice mailed by certified or registered mail, evidenced by return receipt, to the address printed on the instrument or given at the time of issuance shall be deemed sufficient and equivalent to notice having been received by the person making, drawing, uttering or delivering said instrument whether such notice shall be returned undelivered or not." Code Ann. § 26-1704(a)(2)(A). The quoted provision was added by the 1977 amendment to the statute (Ga.L.1977, pp. 1266, 1267-1268).

1. Under the second part of this Code section, a person can be found guilty of issuing a bad check knowing it will not be honored if payment on the check is refused by the drawee upon presentation within 30 days and the maker fails to make the check good (plus service charge) within 10 days after notice of the drawee's dishonor. Further, the notice to the maker which triggers the requirement of payment can be proved by return receipt on a notice sent by certified or registered mail to the address on the check given by the maker. Moreover, even if the notice is returned undelivered, the accused's failure to make payment within 10 days of such notice is prima facie evidence that the accused knew the instrument would not be honored.

The defendant attacks Code Ann. § 26-1704(a)(2) on two grounds. First, she argues that the failure to pay the amount due on the check, plus a specified service charge, after notice that it was dishonored by the drawee cannot be used as prima facie evidence of knowledge that the check would not be honored. We disagree. In our view this is what the United States Supreme Court has recently described as the "most common evidentiary device . . . the entirely permissive inference or presumption which allows but does not require the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant . . . In that situation the basic fact may constitute prima facie evidence of the elemental fact." County Court of Ulster County, New York v. Allen, --- U.S. ----, ----, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777 (1979). Such a permissive presumption survives scrutiny if there is "a 'rational connection' between the basic facts that the prosecution proved and the ultimate fact presumed, and the latter is 'more likely than not to flow from' the former." Id. at ----, 99 S.Ct. at 2228.

This presumption satisfies that test. There is a "rational connection" between the basic fact failure to pay a dishonored check after notice and the presumed fact knowledge that the check would be dishonored because more often than not checks are honored and more often than not a person who writes a check that for some reason is dishonored is able to and does make it good. Thus, when a person fails, after notice, to see to it that the payee of a check receives payment, it is more likely than not that the maker knew that payment would not be made. Of course, there may be instances where this is not so, but in those cases the defendant would be allowed to rebut the presumption. We find the first presumption valid, when given correctly in charge to the jury (see Division 3).

As for defendant's second challenge to Code Ann. § 26-1704(a)(2), we agree that the presumption that notice has been received when the notice was in fact returned undelivered is an irrational presumption arising from facts to the contrary. Thus, the phrase "whether such notice shall be returned undelivered or not" in Code Ann. § 26-1704(a)(2)(A), is so arbitrary as to violate due process. Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); County Court of Ulster County, New York v. Allen, supra. ²

In the case before us defendant was convicted on eight counts and each count involved one check. Two of the checks were cashed at a store which did attempt to give notice by certified mail; the envelope used was returned undelivered and was introduced into evidence. The trial court read the relevant portions of the statute to the jury in its charge. Thus, because the jury could have relied on this presumption in finding knowledge by the defendant that the check would be dishonored which is an element of the crime, the convictions on those two counts must be reversed. Leary v. United States, supra, 395 U.S. at 31-32, 89 S.Ct. 1532. The other six counts are not, however, affected by this ruling, because in proving them the state did not rely on the presumption of notice. ³ Because, in these six counts, no certified or registered notice reached the defendant and thus no requirement of payment of any service charge arose, the defendant lacks standing to challenge the service charge provision of the statute.

2. Defendant also attacks the presumption in Code Ann. § 26-1704(e), which provides that:

"(e) In any prosecution or action under the provisions of this section, a check, draft, or order for which the information required in subparagraphs (1) and (2) of this subsection (e) is available at the time of issuance shall constitute prima facie evidence of the identity of the party issuing the check, draft, or order and that such person was a party authorized to draw upon the named account.

"(1) To establish this prima facie evidence, the following information regarding the identity of the party presenting the check, draft or order shall be obtained by the party receiving such instrument: The full name, residence address, and home phone number.

"Such information may be provided by either of two methods:

"(A) Such information may be recorded upon the check or instrument itself; or

"(B) The number of a check-cashing identification card issued by the receiving party may be recorded on the check. Such check-cashing identification card shall be issued only after the information required in subparagraph (1) has been placed on file by the receiving party.

"(2) In addition to the information required in subparagraph (1), the party receiving a check shall witness the signature or endorsement of the party presenting such check, and, as evidence of such, the receiving party shall initial the check."

Defendant argues that this presumption of identity is irrational and that the evidence is insufficient to show that defendant was the person who wrote the checks at issue. We find it unnecessary to discuss defendant's argument regarding the sufficiency of the evidence absent the presumption, because the presumption is valid. Put in its simplest terms, this is merely a presumption that a person is who he says he is. This is certainly "more likely than not." Since this is a permissive presumption which the defendant may rebut, see Division 1, supra, it satisfies the strictures of due process. County Court of Ulster County, New York v. Allen, supra. ⁴

3. Defendant also argues that the presumptions of knowledge, identity and authority in Code Ann. § 26-1704 are unconstitutional in that they allow a finding of guilt without proof beyond a reasonable doubt. We cannot agree. As we have set forth in Divisions 1 and 2, supra, these are permissive presumptions. They do not allow a finding of guilt without proof beyond a reasonable doubt. County Court of Ulster County, New York v. Allen, supra.

However, in view of Sandstrom v. Montana, supra, --- U.S. at ---- - ----, 99 S.Ct. 2450, 61 L.Ed.2d 39, when charging Code Ann. § 26-1704 to the jury, the trial judge should make clear to them that (1) the presumptions are not conclusive on the jury and may be disregarded, or may be rebutted by any evidence, (2) they do not shift any burden of proof to the defendant and the burden of proof remains on the state to prove each element of the crime beyond a reasonable doubt. See Sandstrom v. Montana, supra; County Court of Ulster County, New York v. Allen, --- U.S. ----, ---- ns. 16, 19, 99 S.Ct. 2213, 60 L.Ed.2d 777 4. Defendant also argues that the testimony of the manager of the drawee bank's bookkeeping department was hearsay and was improperly admitted over objection. Testifying from records made in the regular course of business the bank officer stated, over defendant's continuing hearsay objection, that the account was opened in the name of Rosa Hall with a $25 deposit on July 17, 1978, that no other deposits were made, that three checks were paid from the account, that other checks were drawn on the account but were not paid due to insufficient funds, that statements sent to the address given by defendant were returned, and that the bank closed the account on August 28, at which time it was overdrawn in...