Huffman v. State

• Decision Date: 28 March 1933
• Docket Number: No. 25792.,25792.
• Citation: 205 Ind. 75,185 N.E. 131
• Parties: HUFFMAN v. STATE.
• Court: Indiana Supreme Court

205 Ind. 75

185 N.E. 131

HUFFMAN

v.STATE.

No. 25792.

Supreme Court of Indiana.

March 28, 1933.

Appeal from Circuit Court, Elkhart County; Lloyd L. Burris, Special Judge.

Walter A. Huffman was convicted of violating Burns' Ann. St. Supp. 1929, § 2949, and he appeals.

Affirmed.

Robert E. Proctor, of Elkhart, for appellant.

James M. Ogden, Atty. Gen., and Burke Walker, Deputy Atty. Gen., for the State.

TREANOR, Chief Justice.

Appellant was indicted¹ for and convicted of violating section 6 of chapter 201, Acts 1927, p. 578 (section 2949, Burns' Ann. Ind. St. Supp. 1929).² He assigns as error that the trial court erred in overruling his motion for a new trial, and under points and authorities presents under six propositions the errors complained of which, he contends, entitled him to have his motion for new trial sustained.

The first of these relate to the admission in evidence, over appellant's objection, of exhibits consisting of certain certificates of deposit, certificate of deposit records, cashier's register, remittance ledger, deposit slips, checks, cashier's checks, and ledger sheets which tended to establish that the appellant had issued to the Farmers' & Merchants' Bank of Foraker, Ind., both before and after the issuance of the check which constituted the basis of this prosecution, a number of checks, some drawn on the South Side State Bank of Elkhart, Ind., and some drawn on the St. Joseph Valley Bank of Elkhart, Ind., and that when such checks cleared through banking channels to the respective banks on which they were drawn there were insufficient funds on deposit in drawer's account to pay such checks. Appellant contends that these exhibits “were not relevant to the guilt or innocence of the accused, and were in fact evidences of other offenses alleged to have been committed before and subsequent to the date stated in the indictment.” Assuming that appellant is correct in his contention that the exhibits objected to constituted “evidences of other offences alleged to have been committed,” it does not follow that they were improperly admitted. In Gears v. State (1932) 203 Ind. 380, 180 N. E. 585, 586, this court said: “There is no reason why a court should admit evidence of offenses that are entirely unrelated to the offense for which a defendant is on trial. But we have a different problem when the relation which exists between the other offenses and the one under investigation is such that evidence of defendant's participation in the other offenses is also evidence tending to show that defendant is guilty of the offense charged. *** We consider that this court has adopted, and correctly so, the rule that evidence of the commission of other offenses is admissible, not only to negative an innocent intent, but also to prove that the defendant committed the act constituting the crime with which he is charged; and this evidence is admissible for the latter purpose either because it tends to identify the defendant as the perpetrator of the offense or because it shows a scheme or plan on the part of the defendant to commit a series of offenses, one of which is the offense in question.”

In the instant case the jury's consideration of the evidence objected to was limited by an instruction to the question of appellant's intent to commit the particular offense charged. In Crum v. State (1897) 148 Ind. 401, 47 N. E. 833, 836, it was said: “It is true that such evidence of similar offenses is more frequently received in cases of forgery and counterfeiting than in any others. This, however, is only because in such cases the commission of other like acts tends more frequently to show the intent with which the act charged was done. In principle there can be no reason why in any case the intent with which an act was done may not be proved by competent and pertinent evidence, even though proof may thus incidentally be made of other offenses.”

But appellant contends that such evidence is not admissible for that purpose unless the defendant offers evidence controverting the existence of intent to defraud, because the statute defining the offense with which appellant was charged provides that “the making, drawing, uttering or delivering of such check *** shall be prima facie evidence of intent to defraud.” Appellant's contention amounts to saying that the effect of the above–quoted provision of the statute is to limit the state, in its proof of intent to defraud, to introducing only the facts which under the statutory provision constitute “prima facie evidence of intent to defraud” and to forbid the introduction of any other facts which ordinarily would be competent evidence of the intent of the accused, unless and until the defendant should introduce evidence denying the presence of intent to defraud. While a verdict under the statute may be upheld as being sustained by sufficient evidence where prima facie evidence has been introduced, yet prima facie evidence does not require a verdict or shift from the state the burden of proving the guilt of the defendant beyond a reasonable doubt.³

The facts which the statute declares constitute prima facie evidence of intent to defraud would have the same effect without the statute; and we see no more reason for limiting the state to proof of facts which are declared by statute to be prima facie evidence of intent than we do for limiting it to proof of facts which the trial court, without a statutory declaration, could say constitute prima facie evidence of intent. We consider the rule thoroughly settled in this jurisdiction that any relevant evidence, in other respects competent, is not rendered incompetent because it may tend to prove a defendant guilty of offenses other than the one under investigation; and we do not recognize any qualification of this rule in case of offenses where intent may be inferred from the act itself. This was clearly stated by Myers, J., speaking for the court in Zimmerman v. State (1921) 190 Ind. 537, 130 N. E. 235, 237: “To state the exceptions generally it can be said that, when the act constituting the crime has been established, then any evidence tending to show motive, intent or guilty knowledge, if in issue, or evidence which directly or as a natural sequence tends to show the defendant guilty of the crime charged is competent, although it also tends to show him guilty of another and distinct offense.” In so far as Shears v. State (1897) 147 Ind. 51, 46 N. E. 331, may be construed as qualifying the rule, it was modified by Crum v. State, supra, by necessary implication; and we now expressly declare that it was so modified.

In the instant case the evidence of appellant's check transactions immediately preceding and following the drawing and delivery of the check No. 619, State's Exhibit 10, was relevant not only to the issue of intent, but also to the question of appellant's alleged knowledge of the insufficiency of funds to pay the check in full upon its presentation; it also tended to show a scheme or plan to issue a series of fraudulent checks.

We agree with appellee that the offense charged is a species of fraud by false pretense. State v. Avery (1922) 111 Kan. 588, 207 P. 838, 23 A. L. R. 453, cited to the contrary by appellant, is not in point. The offense under consideration in that case was properly held not to be “related to the false token, bogus check, and false pretense group of crimes” for the reason that under the Kansas Worthless Check Act fraud is not an element of the offense therein defined. The following excerpts from the opinion in State v. Avery are conclusive on that point:

“The purpose of the statute was to discourage overdrafts and resulting bad banking (Saylors v. State Bank, 99 Kan. 515, 518, 163 P. 454) to stop the practice of ‘check kiting,’ and generally to avert the mischief to trade, commerce, and banking which the circulation of worthless checks inflicts. Although the statute tends to suppress fraud committed by the worthless check method, the evils referred to are all quite distinct from those consequent on fraud, and the statute is to be regarded as creating a new and distinct offense. ***

“In this instance it seems clear that fraudulent intent was purposely omitted from the enumeration of elements of the crime.”

Appellant objected to the admission of certain exhibits, the ground of objection being that the notary who protested these exhibits did not comply with the law of Indiana. The exhibits were checks and irregularity in protesting, or even failure to protest, could not affect the admissibility of the checks. The offense was complete when the appellant issued the check.

In support of his point “that the verdict of...