Marr v. State

• Decision Date: 15 February 1962
• Docket Number: No. 99,99
• Citation: 177 A.2d 862,227 Md. 510
• Parties: Thomas E. MARR v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 510

227 Md. 510

177 A.2d 862

Thomas E. MARR v. STATE of Maryland.

No. 99.

Court of Appeals of Maryland.

Feb. 15, 1962.

Louis E. Carliner, Baltimore, for appellant.

Clayton A. Dietrich, Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Saul A. Harris, State's Atty. and James W. McAllister, Asst. State's Atty., Baltimore, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, PRESCOTT, HORNEY and MARBURY, JJ.

HENDERSON, Judge.

Thomas E. Marr was tried before a court and jury on three indictments charging him with forgery, uttering, passing worthless checks, and false pretenses on three separate occasions. At the conclusion of the State's case, he moved for a directed verdict, which the court granted as to the first three counts in each indictment. The court ruled that it would permit the jury to consider the fourth count in each indictment. The defense then rested. At the conclusion of the court's charge both counsel for the State and counsel for the accused stated that they did not 'wish any further instructions or take any exceptions.' The jury found the defendant guilty on each count, and the court imposed a sentence of three years in each case, to run concurrently. The appeal challenges only the sufficiency of the evidence.

The State moved to dismiss the appeal on the ground that the appellant did not print in his record extract all of the evidence necessary for a consideration of the questions presented, as required by Maryland Rule 828 b 1(b). The State complains that the appellant failed to reproduce the three checks offered in evidence. The explanation appears to be that these State exhibits were lost or mislaid, and are not included in the transcript. Their absence cannot be blamed upon the appellant. The testimony in the record extract described the checks in detail, and they also appear to be quoted in the earlier counts of the indictments. The State also complains of the omission of certain testimony corroboratory of the indentification of the defendant by the witnesses Hartman, Springer and Shinosky. The omitted testimony was relevant, but cumulative. The appellant does not dispute the fact that these witnesses identified him as the man who cashed two of the checks. ¹ Under the circumstances there is room for a difference of opinion as to the necessity for printing cumulative testimony, and we think the drastic penalty of dismissal should not be imposed. Cf. Bornstein v. State Tax Comm., Md., 176 A.2d 859 (No. 127, September Term, 1961).

There was testimony that on June 18, 1960, a person subsequently identified as Marr, by Hartman and Springer, entered the package liquor store operated by Frank J. Springer and asked them to cash a check for him. The check was dated June 14, 1960, drawn on the Maryland Trust Company, payable to the order of Marion M. Burke, III for the sum of $124.65, and signed by D. S. & D. Dry Wall Co., by Robert A. Pierson. Neither Hartman nor Springer could swear positively that Marr indorsed the check in their presence, but an indorsement in the name of Marion M. Burke, III appeared on the back of the check as offered in evidence. Hartman testified that Marr was asked for his 'identification' and showed it to Springer, who thereupon gave him the money. Out of the proceeds, Marr purchased a bottle of whiskey. The check was returned by the drawee bank with the notation that the signature was not authorized. The check introduced in evidence bore the further notation: 'This is a stolen check.'

On June 24, 1960, Marr entered the American Stores Company and asked the manager, Shinosky, to cash a check for $109.41. This check was dated June 23, 1960, payable to Marion M. Burke, III, and indorsed in that name. It was drawn on the Maryland Trust Company by D. S. & D. Dry Wall Co., by William T. Russell. Shinosky testified that he 'okayed' the check because he knew of the drawer corporation, although he did not know the payee and 'the identification he gave me was out of my neighborhood'. Shinosky 'thought the check had already been indorsed when I looked at it.' Marr presented the check to a cashier, received the money, and then got a cart and proceeded to load it with groceries. The check was returned with a notation that the signature was unauthorized.

On June 23, 1960, a check for $89.54 was 'okayed' by Myers, the manager of Ches-Park Food Market, Inc., an Acme store. This check was dated June 22, 1960, payable to Marion M. Burke, III, and indorsed in that name. It was drawn on the Maryland Trust Company by D. S. & D. Dry Wall Co., by William T. Russell. Myers identified the check and testified that it was returned with the notation 'signature unauthorized.' He did not see anyone indorse the check; he did not even see the person who had produced it. He thought one of his cashiers cashed it, after he, Myers, had approved it. The only other testimony connecting Marr with this transaction was the testimony of a police officer, Minderline, that the four 'prosecuting witnesses' identified Marr at the preliminary hearing as the person who cashed the checks. This, of course, is contrary to Myers' testimony in court.

There was also testimony that Marr was picked up on a traffic charge on June 24, 1960, and gave the name of 'Bruce Frizell', which proved to be not his name. A carbon copy of his signature in that name was put in evidence, but no handwriting testimony was offered.

The appellant contends that the evidence was legally insufficient to prove fraudulent intent, and that mere proof that the accused cashed checks, which were not drawn by authorized persons, does not make out a case of false pretenses. As to the Ches-Park check, he contends there was no proof that he was the person who cashed it.

It is quite true, as the appellant maintains, that there is a distinction between a prosecution under the Worthless Check Act (Code (1957), Art. 27, sec. 142), and the False Pretenses Act (Code (1957), Art. 27, sec. 140), in that the drawing of a check, for which there are insufficient funds in the bank, raises a prima facie presumption of an intent to defraud and this shifts the burden of proof. Lyman v. State, 136 Md. 40, 109 A. 548, 9 A.L.R. 401; Willis v. State, 205 Md. 118, 106 A.2d 85. But in a prosecution under sec. 140 the giving of a check may constitute the false pretense, although the State has the burden of proving that there was 'a representation of an existing fact made with intent to defraud, and that the operation of such representation as a deception induced a transfer and the obtaining of the money or property by the person committing the fraud to the loss of another.' Willis v. State, supra, p. 123, 106 A.2d 87. Cf. Levy v. State, 225 Md. 201, 206, 170 A.2d 216.

In the instant case we think an inference can be drawn from the evidence that Marr falsely represented...