Hutto v. State
| Decision Date | 10 January 1991 |
| Docket Number | No. A90A2059,A90A2059 |
| Citation | 198 Ga.App. 325,401 S.E.2d 339 |
| Parties | HUTTO v. The STATE. |
| Court | Georgia Court of Appeals |
Charles D. Strickland, Augusta, for appellant.
Lindsay A. Tise, Jr., Dist. Atty., Francis J. George, Asst. Dist. Atty., for appellee.
Defendant was convicted in a bench trial of the offense of criminal issuance of a bad check. She appeals, asserting the conviction was not supported by the evidence.
Reviewing the transcript of the trial, we find the following: H & M Construction Company ("H & M"), a partnership consisting of David Hutto and Evelyn McSilkey, performed work at Lake Hartwell pursuant to a contract with the "Army Corps of Engineers." Pursuant to a written contract, H & M subcontracted with Danny Wilson and Mark Milford to cut grass around the lake. Wilson and Milford were partners and they furnished the equipment and labor for the job.
Ordinarily, H & M paid Wilson and Milford in the middle of the month for work performed during the preceding month. H & M issued checks to Wilson (who "would get a 1099 from H & M") and Wilson paid Milford (who "would get a 1099 from [Wilson]").
On August 9, 1986, a Saturday, Milford went to H & M's office. He heard that H & M had lost its contract with the "Army Corps of Engineers" and he wanted to be paid. At that time, H & M owed Wilson and Milford for work performed during the latter half of June and all of July.
Hutto informed Milford that he did not have any company checks but that he could give Milford a personal check. Hutto then turned to his wife, the defendant, and told her to write a check to Wilson.
The defendant was not an employee of H & M. She had no connection with H & M other than the fact that she was married to David Hutto. Nevertheless, she issued a personal check made payable to Wilson in the amount of $13,115.
According to the defendant, Hutto and a former secretary of H & M, the defendant told Milford she did not have sufficient funds to cover the check. Milford denied he was told any such thing.
Milford and Wilson telephoned the bank on Tuesday, August 12, 1986, to see if the check was good. They called back about eight or nine days later. Ultimately, four to six weeks later, the check was presented for collection. It was not honored.
In the meantime, Milford and Wilson met with Hutto and H & M's attorney to see if they could work things out. The attorney testified that he asked Milford why he would accept a check which he knew was not good and that Milford replied: "I thought it would be better to have a check than to have nothing at all." Neither Milford nor Wilson recalled the attorney's question. Held:
"A person commits the offense of criminal issuance of a bad check when he makes, draws, utters, or delivers a check, draft, or order for the payment of money on any bank or other depository in exchange for a present consideration or wages, knowing that it will not be honored by the drawee." OCGA § 16-9-20(a). Did the defendant give a check in exchange for (1) a present consideration or (2) wages?
1. Griffith v. State, 249 Ga. 19, 20-21, 287 S.E.2d 187 (1982). Thus, "it must be proved that the party alleged to have been defrauded suffered loss resulting from its reliance on the defendant's wrongful act as charged in the indictment." Hamilton v. State, 118 Ga.App. 842(1), 165 S.E.2d 884 (1968). "However, the requisite of 'present consideration' may exist although goods or services are received before a check is delivered in payment, where the interval is slight and the exchange can be characterized as a single contemporaneous transaction." Bowers v. State, 248 Ga. 714, 715, 285 S.E.2d 702 (1982).
In Griffith v. State, supra, the defendant operated a gasoline service station. He issued three checks to Thomas Oil Company to pay for gasoline delivered to the station. One check was issued on December 12, 1978, to pay for gasoline delivered the same day. A second check was issued on January 24, 1979, for deliveries made on January 16, 1979, and January 18, 1979. The third check was issued on February 8, 1979, for gasoline delivered on February 5, 1979. The evidence demonstrated that the defendant would write checks for the gasoline if he was at the station at the time of delivery. If the defendant was not at the station, an invoice was left for him with no arrangement for payment. The Supreme Court held that the second and third checks issued by that defendant were not for a present consideration inasmuch as they did not evidence a single contemporaneous transaction.
We find Griffith v. State, supra, to be applicable to the facts of this case. The course of dealings between H & M and Wilson and Milford showed that H & M ordinarily issued a check to Wilson in the middle of the month for services performed in the preceding month. And the check in...
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17 Bad Check Prosecutions
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