Russell v. State

• Decision Date: 04 September 1980
• Docket Number: No. 60200,60200
• Citation: Russell v. State, 271 S.E.2d 689, 155 Ga.App. 555 (Ga. App. 1980)
• Parties: RUSSELL v. The STATE.
• Court: Georgia Court of Appeals

Page 689

271 S.E.2d 689

155 Ga.App. 555

RUSSELL v.The STATE.

No. 60200.

Court of Appeals of Georgia.

Submitted July 7, 1980.

Decided Sept. 4, 1980.

S. Phillip Brown, Macon, for appellant.

Austin J. Kemp, II, Sol., for appellee.

DEEN, Chief Judge.

1."(T)he crime of issuing a bad check occurs at the time the check is issued if it is made or issued with the knowledge that it will not be honored.Contrary to appellant's assertions, notice of the drawee's refusal to pay, followed by ten days for the defendant to pay the check (upon notice of its dishonor), is not an element of the offense of issuing a bad check.The provisions in Code Ann. § 26-1704(a) relating to notice to the defendant and his subsequent failure to pay the amount due are evidentiary matters and are not prerequisites to the commission of or conviction of the offense of issuing a bad check."State v. Brannon, 154 Ga.App. 285, 286, 267 S.E.2d 888(1980).The court trying a bad check case without a jury may be convinced by other evidence in the record that, notwithstanding the notice provisions of Code§ 26-1704 were not followed so as to make out a prima facie case in this matter, the state sufficiently established the mens rea of the defendant.

2.The standard for granting a judgment notwithstanding the verdict is the same as that for granting a directed verdict.Horton v. City of Macon, 144 Ga.App. 380, 241 S.E.2d 311(1977).A motion for judgment notwithstanding the verdict is not appropriate in a criminal case and when made in the alternative with a motion for new trial, amounts to no more than the latter.Deen v. State, 216 Ga. 387, 116 S.E.2d 595(1960).We accordingly treat the second enumeration assigning error on the conviction generally as an equivalent to the general grounds of a motion for new trial.

3.On appeal, the burden is on the appellant to show error.In the record before us there is no brief of evidence, and the trial court certifies that opposing counsel could neither agree on a stipulated statement nor could he, except for those facts included in the final judgment, remember what the evidence was.This procedure complies with Code§ 6-805(g), and shows only that the check in question was given as part of the purchase price of a truck, which was subsequently recovered by the seller, and that the defendant did not have sufficient funds in his account to cover the check dated May 20 on either May 18 or May 23, the latter date showing the account already overdrawn.Thus, no facts stated in the judgment show on their face that it was...