Payne v. Com., 801452

• Decision Date: 11 September 1981
• Docket Number: No. 801452,801452
• Citation: 281 S.E.2d 873,222 Va. 485
• Parties: Charles Everette PAYNE, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 873

281 S.E.2d 873

222 Va. 485

Charles Everette PAYNE, Jr. v. COMMONWEALTH of Virginia.

Record No. 801452.

Supreme Court of Virginia.

Sept. 11, 1981.

John B. Mann, Richmond (Levit & Mann, Richmond, on brief), for appellant.

Vera S. Warthen, Asst. Atty. Gen. (Marshall Coleman, Atty. Gen., on brief), for appellee.

Before CARRICO, C. J., and HARRISON, COCHRAN, POFF, COMPTON, THOMPSON and STEPHENSON, JJ.

POFF, Justice.

This is an appeal from a conviction under the Virginia Bad Check Law, Code §§ 18.2-181 to -185 (Cum.Supp.1980).

Pursuant to an oral agreement, Clarence Hudson and the defendant, Charles E. Payne, Jr., conducted a wholesale furniture business, a venture both characterized as a partnership. Hudson agreed to buy the inventory and pay all operating expenses, and Payne agreed to do the selling and share the losses in exchange for a commission and a share of the profits. By letter dated July 12, 1972, Hudson advised Payne that the partnership was dissolved. Upon advice of counsel, Payne decided to form a corporation and continue doing business alone. The articles of incorporation were delivered to the State Corporation Commission on July 28, 1972, and, on August 2, 1972, the Commission granted a charter to Ideal Furniture Industries, Inc.

Meanwhile, on August 1, 1972, Hudson and Payne met to settle accounts. Inventories conducted on July 12 and 27 showed that Payne had withdrawn $4,191.94 worth of furniture from the warehouse, and Hudson had paid several inventory invoices and certain bills for business expenses. Hudson claimed that Payne owed him $8,574.17, and Payne gave him a check dated August 1, 1972 for that sum. Payne wrote the check on a form bearing the printed name and address of a local bank. A handwritten notation at the top stated: "Ideal Furniture Industries, Inc., P. O. Box 3515, Richmond, Va. 23234." Payne signed the check in proper person and gave it to Hudson with the assurance that it was "as good as gold".

The bank dishonored the check, and Hudson notified Payne by registered mail and demanded payment. Payne signed the return receipt, and the five-day period prescribed in Code § 18.2-183 lapsed without payment. Upon Hudson's complaint, Payne was indicted under the Bad Check Law and convicted by the trial court, sitting without a jury. By final order entered May 13, 1980, imposition of a sentence was suspended for five years, conditioned, inter alia, upon "restitution for any amount due by reason of the check, if any, at the rate of $200.00 per month."

On appeal, Payne contends that the business venture was a partnership; that "the assets of the business were partnership property"; that those assets retained this status until the affairs of the partnership were settled; and that the partners "share(d) equal rights in partnership property". Based upon these premises and reasoning that a person cannot steal something in which he has a proprietary interest, Payne concludes that "there can be no larceny of such property by either partner". ¹

While the record is unclear, we will assume, for purposes of this opinion, that the evidence supports the premises Payne posits and that the conclusion he draws is a viable defense to a charge of common law larceny. But Payne was not charged with that offense. Common law larceny is " 'the wrongful or fraudulent taking of personal goods of some instrinsic value, belonging to another, without his assent and with the intention to deprive the owner thereof permanently.' (Italics in the text.)" Vaughan v. Lytton, 126 Va. 671, 679, 101 S.E. 865, 867 (1920). Payne was convicted of an offense unknown at common law. The statute under which he was indicted provides that "(a)ny person who, with intent to defraud, shall make or draw or utter or deliver any check ... for the payment of money, upon any bank ... knowing ... that the maker or drawer has not sufficient funds in ... such bank ... for the payment of such check ... shall be guilty of larceny." Code § 18.2-181. The elements of the statutory offense are materially different from those of common law larceny, and the difference renders the defendant's arguments wholly inapposite.

To prove common law larceny, the Commonwealth must show that the accused wrongfully acquired possession of personal goods belonging to another. As Payne notes on brief, "there was no contemporaneous transfer of either goods or services in exchange for the check". But such a transfer is not an element of the statutory offense. To prove a bad-check offense, "(i)t need not be shown ... that anything was received in return for the check", for "the offense is complete when, with the requisite intent, a person utters a check he knows to be worthless." Warren v. Commonwealth, 219 Va. 416, 422, 247 S.E.2d 692, 695 (1978). See also Patterson v. Commonwealth, 216 Va. 306, 308, 218 S.E.2d 435, 437 (1975); Rosser v. Commonwealth, 192 Va. 813, 816-17, 66 S.E.2d 851, 853 (1951).

The material facts disclosed by the record are not in dispute. Payne uttered a check drawn on a bank for the payment of money. The bank dishonored the check. Hudson gave Payne written notice of dishonor by registered letter. Payne acknowledged receipt of notice but failed to make payment within five days. These facts constitute "prima facie evidence of intent to defraud or of knowledge of insufficient funds...." Code § 18.2-183. There was no evidence sufficient to overcome this statutory presumption, see Cook v. Commonwealth, 178 Va. 251, 258, 16 S.E.2d 635, 638 (1941), and we hold that the proof establishes every element of the offense charged.

In an alternative argument, Payne contends that the check was drawn on a corporate rather than a personal account, and he questions whether, considering Code §§ 18.2-181, -182 together, such a check is within the proscription of the Bad Check Law. But the record shows that the corporation was not in existence on August 1 when the check was drawn and delivered, see Code § 13.1-52, and that Payne's signature was personal and not qualified by corporate title.

Although, in light of these circumstances, the question Payne poses is not ripe for adjudication, we observe that Code § 18.2-181 proscribes "any (worthless) check" made, drawn, uttered, or delivered with fraudulent intent by "any person", and that it does so without distinguishing between personal and corporate bank accounts. As Payne points out, some such distinction is implicit...