Hardeman v. State, 59621

• Decision Date: 16 April 1980
• Docket Number: No. 59621,59621
• Citation: 268 S.E.2d 415,154 Ga.App. 364
• Parties: HARDEMAN v. The STATE.
• Court: Georgia Court of Appeals

Page 415

268 S.E.2d 415

154 Ga.App. 364

HARDEMAN v. The STATE.

No. 59621.

Court of Appeals of Georgia.

Submitted March 6, 1980.

Decided April 16, 1980.

Charles A. Mathis, Jr., Macon, for appellant.

Clarence H. Clay, Jr., Sol., J. Robert Sikes, Asst. Sol., for appellee.

BIRDSONG, Judge.

Cheryl Hardeman was convicted of uttering and delivering a worthless check. She was sentenced to serve 12 months probated upon the payment of a fine and making restitution. Hardeman brings this appeal arguing that the facts do not make out the crime charged. Held :

We agree with the contention of the appellant and reverse. The facts show that Hardeman caused a friend to deliver her car to a Firestone Tire & Rubber Co. outlet for certain front end alignment. Hardeman picked up her car and made payment for the work by her personal check in the amount of $40.20. Hardeman had noticed that the car pulled sharply to one side and it was this fault that she wished to have corrected. While driving the car home, Hardeman became aware that the fault was still present and that no correction had been accomplished. Hardeman, being dissatisfied with the work, stopped payment on the check. After negotiation with the manager of the Firestone store, Hardeman returned her car for further correction. The manager testified that the store performed all the work demanded but that the problem lay in the separation of the tread of the tires and not in the failure to align the front end or rotation of the tires. It was acknowledged that Hardeman had sufficient funds in the bank to meet the check upon presentment. The manager also acknowledged that Hardeman was not aware at first that the problem was in the tire separation. Hardeman removed the stop order from the check, but when told that she would have to pay for the work as well as buy two more tires, she once again stopped payment. The store manager then swore out the warrant for the bad check, and this prosecution followed.

Code Ann. § 26-1704 (Ga.L.1975, pp. 482, 483, as amended) makes it illegal to make and utter a check in exchange for a present consideration with knowledge that it will not be honored upon presentment. It is prima facie evidence of such knowledge if at the time the check is uttered the drawer had no account or payment was refused for lack of sufficient funds. See Brooks v. State, 146 Ga.App. 626, 247 S.E.2d 209. The facts of this case indisputably show that at the time the check was written by Hardeman there were sufficient assets in the bank to meet the check on presentment and that the check was not refused payment because of lack of funds. This was shown by the bank statement, testified to by Hardeman...