Sinclair v. State

• Decision Date: 26 June 1975
• Docket Number: No. 591,591
• Citation: 27 Md.App. 207,340 A.2d 359
• Parties: Philippe Andre SINCLAIR v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 207

27 Md.App. 207

340 A.2d 359

Philippe Andre SINCLAIR v. STATE of Maryland.

No. 591.

Court of Special Appeals of Maryland.

June 26, 1975.

Paul H. Spiller, Morton Richard Kimmel, Wilmington, Del., Fred S. London, Randallston, and Kimmel, Spiller & Bradley, Wilmington, Del., for appellant.

Bernard A. Raum, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Richard R. Cooper, State's Atty., for Kent County and Basil Wadkowsky, Deputy State's Atty., for Kent County, on the brief, for appellee.

Argued before MORTON, DAVIDSON and LOWE, JJ.

MORTON, Judge.

The appellant, Philippe Andre Sinclair, was convicted by a jury sitting in the Circuit Court for Caroline County (Wise, J., presiding) on five separate charges (contained in an information) of violating the so-called Worthless Check Act, Code, Art. 27 § 142. A sentence of five years, with three years suspended, was imposed on the first conviction (count 3 of the information) and identical concurrent sentences were imposed on the remaining four convictions (counts 7, 11, 15 and 19 of the information). The case had been removed from the Circuit Court for Kent County.

In this appeal appellant raises a number of issues, in the first of which the contends that the evidence was legally insufficient to support a finding of guilt under Code, Art. 27 § 142.

It appears from the record that the appellant was president of Sinwellan Corporation which operated a resort known as The Great Oak Lodge near Chestertown in Kent County, Maryland. On five separate occasions between July 13, 1973, and August 31, 1973, checks signed by the appellant, drawn on several banks in varying amounts totaling over $10,000 made payable to Fulton Meat Packing Company (Fulton), were delivered to that company in payment for meats sold and delivered to The Great Oak Lodge. Each of the five checks was presented to the appropriate bank by Fulton and each was returned with the notation 'Insufficient Funds' and the further notation on several of the checks, 'Check presented twice, please do not present again.' There was evidence that at the time of the trial below the checks still had not been honored or payment made to Fulton in lieu of the checks.

In contending that the evidence was legally insufficient to sustain the convictions, it is particularly contended that there was no evidence to show that appellant intended to cheat and defraud Fulton or that he signed the dishonored checks; that there was no 'evidence that proved insufficient funds'; and that there was a failure to prove delivery of the meats.

Code, Art. 27 § 142, provides in part:

'Every person who, with intent to cheat and defraud another, shall obtain money, credit, goods * * * or anything of value * * * by means of a check, draft or any other negotiable instrument of any kind drawn, whether by such person or by any other person, persons, firm or corporation, upon any bank * * * and the same be not paid upon presentation, shall be deemed to have obtained such money, credit, goods, services * * * or things of value by means of a false pretense, * * * The giving of the aforesaid worthless check, draft or negotiable instrument * * * shall be prima facie evidence of intent to cheat or defraud; provided that if such person shall be a bona fide resident of the State of Maryland and shall deposit with the drawee of such paper * * * within ten days thereafter funds sufficient to meet the same, with all costs and interest which may have accrued he shall not be prosecuted under this section, and no prosecution either by presentment, indictment or otherwise, shall be instituted or commenced until after the expiration of said period of ten days.'

We cannot quarrel with appellant's statement that under the statute, the 'State must show 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.' See League v. State, 1 Md.App. 681, 232 A.2d 828. We cannot agree, however, that the State failed to meet its burden.

The credit manager of Fulton (whose principal place of business was in Massachusetts) testified that Fulton agreed to deliver meats to The Great Oak Lodge upon order of the chef and that the shipments were to be made by common carrier (motor freight) on a C.O.D. basis. The driver of the truck was specifically instructed not to deliver the meats until he had received payment, either by check or in cash. He further testified that each of the five checks was given to Fulton for meats 'sold and delivered' to The Great Oak Lodge. According to the manager, on several occasions when the checks were returned unpaid, he talked with appellant who advised him 'redeposit them and they are all right.'

We think it perfectly clear, therefore, that Fulton was induced to part with its property in reliance upon the representation of appellant (which turned out to be a misrepresentation) that the checks were good. The statute provides that the giving of a worthless check 'shall be prima facie evidence of intent to cheat or defraud.' The appellant not only failed to rebut the presumption by 'making good' the checks within the ten days provided for in the statute, but the record indicates that the checks were still unpaid at the time of the trial below. Thus, rather than rebutting the statutory presumption, the appellant's course of action would appear to have confirmed his intention to cheat and defraud.

We find no merit in the contention that there was no proof of the delivery of the meats. There was the evidence that the truck driver was not to make delivery until he had received a check in payment therefore and Fulton had five checks in its possession which the manager stated ostensibly represented payment for the delivered meats. There was testimony from eyewitnesses to the delivery of the meats on several occasions. Finally, there was the testimony of the appellant himself who told the credit manager of Fulton to 'redeposit the checks,' a statement he would hardly have made in the absence of the delivery of the meats.

With respect to proof of appellant's signature, it is highly unlikely that appellant would advise the credit manager to redeposit the checks-'they are all right'-if they had not contained his signature as the drawer. Moreover, the jury had before it for comparison the checks themselves and the bank's signature cards. The issue of whether the checks were drawn by the appellant was for the jury and the members obviously concluded that it was his signature.

The contention that there was no evidence to prove insufficient funds to pay the checks is patently frivolous. The evidence was overwhelming that they had not been paid. Thus, we find no merit in the appellant's contention that the evidence was legally insufficient to support a finding of guilt under Code, Art. 27 § 142.

The appellant mounts a vigorous attack upon the validity of his convictions because 'the State's Attorney had a conflict of interest but prosecuted nevertheless * * *.'

It appears that on January 24, 1974, the state's attorney wrote the following letter to the Governor of Maryland:

'Dear Sir:

Kent County is involved in the prosecution of one Philippe Andre Sinclair and the Sinwellan Corporation, both of whom were indicted on October 30, 1973, in Kent County. The charges arose out of a transfer of Freat Oak Lodge and Yacht Club.

Certain events have transpired which have rendered me incapable of handling the prosecution.

These events have been discussed with Clarence W. Sharp, Chief of the Criminal Division of the Attorney General's Office.

I, therefore, hereby request that the Attorney General's Office handle the prosecution of these cases.

Thank you very much for your kind cooperation and consideration in this matter.' ¹

At a pretrial conference held on April 4, 1974, appellant discovered that, notiwithstanding the State's previous motion to continue the case in order to permit its prosecution by an assistant attorney general, rather than by the state's attorney, the state's attorney himself was going to prosecute the case. On April 11, 1974, appellant filed a motion seeking, among other things, to disqualify the state's attorney and the deputy state's attorney from prosecuting the cases and to dismiss the cases because of a conflict of interest on the part of those officials. Attached to the motion was a sworn affidavit of appellant, dated April 11, 1974, which read in pertinent part as follows:

'(1) That the State's Attorney, Richard Cooper, and the Deputy State's Attorney, Basil Wadkovsky, hold themselves out as a partnership in the practice of law in Chestertown, Maryland;

(2) That Basil Wadkovsky is or has acted as attorney for the Maryland National Bank and such Bank holds a note against Frank and Ethel Russell and Great Oak Estates Realty, Inc.;

(3) That State's Attorney Cooper is or has been attorney for Carrol Tilley who holds a note against the Russells and Great Oaks Resort & Yacht Club, Inc.;

(4) That the defendant, Philippe A. Sinclair during 1972 and 1973 was involved and negotiating with the purchase of Great Oak Resort & Yacht Club, Inc., and Great Oak Estates Realty, Inc., and the lands of Frank and Ethel Russell;

(5) That State's Attorney Cooper and Deputy State's Attorney Wadkovsky attempted to sell the notes they held to the defendant Philippe A. Sinclair in July and August of 1973. The matter was not consummated and thereafter in October of 1973, State's Attorney Cooper made presentment to the Grand Jury of Kent County and issued informations which are the subject matter of the present criminal actions; and the Grand Jury returned indictments;

(6) That State's Attorney Cooper in October of 1973 prior to any presentment to the Grand Jury, informed the defendant Philippe A. Sinclair that if defendant filed an...