People v. Kanan

• Decision Date: 30 September 1974
• Docket Number: No. 26017,26017
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John E. KANAN, Defendant-Appellant. . In Department
• Court: Colorado Supreme Court

Page 1339

526 P.2d 1339

186 Colo. 255

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John E. KANAN, Defendant-Appellant.

No. 26017.

Supreme Court of Colorado. In Department.

Sept. 30, 1974.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., James S. Russell, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Thomas M. Van Cleave III, Duncan W. Cameron, Deputy State Public Defenders, Denver, for defendant-appellant.

ERICKSON, Justice.

The defendant, John E. Kanan, was convicted of passing short checks, a felony under 1967 Perm.Supp., C.R.S.1963, 40--14--20. He contends that his conviction should be reversed because the trial court did not properly instruct the jury. We agree and, therefore, reverse and remand for a new trial.

Kanan wrote three separate checks totaling seventy-five dollars to the ABC Liquor Store during the course of one week in February 1972. The manager of the store deposited the checks, which were returned with the notation that Kanan's account was closed for insufficient funds in January.

There is conflicting evidence as to whether Kanan had knowledge that his checking account was overdrawn. The bank sent Kanan's monthly bank statements to Kanan's address in October, November, December and January, and each statement showed that Kanan's account was overdrawn. The bank also mailed the notice of closure of the account to the same location. The evidence established that the December and January statements were returned to the bank and were not delivered to Kanan.

The jury found Kanan guilty, and he was sentenced to the penitentiary. Defense counsel contends that the trial court committed error and deprived Kanan of the presumption of innocence when the following instruction was given:

'You are instructed that a check drawn and delivered by a person carries with it a representation that such person knows the status of his account and that there are sufficient funds on deposit to pay the check upon its presentation for payment at the bank named as drawee on such check.'

We agree. The presumption of innocence, coupled with proof of each element of the charge beyond a reasonable doubt, provides the foundation for our system of criminal justice. People v. Hill, Colo., 512 P.2d 257 (1973).

Under the provisions of the Short Check Statute, the prosecution must prove that the drawer of the check knew that there were insufficient funds in his account to pay the check. 1967 Perm.Supp., C.R.S.1963, 40--14--20(6). The instruction dispensed with the prosecution's obligation to prove knowledge and reversed the burden of proof.

We will not permit the prosecution to utilize a presumption of guilt as a basis for obtaining a conviction in a bad check case. People v. Vinnola, 177 Colo. 405, 494 P.2d 826 (1972); Moore v. People, 124 Colo. 197, 235 P.2d 798 (1951). We stated in Moore that the law does not allow an intent to defraud to be presumed whenever a bank refuses to honor a check.

Bank operations, although efficient, are subject to ordinary mistakes which fallible employees make. To conclude that whenever a check was returned to the payee, the drawer must have known the state of his account, would be 'a result (which) strikes at the very foundation of our system of criminal justice.' People v Vinnola, Supra. The trial...