Smithson v. State

• Decision Date: 24 January 1969
• Parties: , 222 Tenn. 499 Charles Wayne SMITHSON v. STATE of Tennessee.
• Court: Tennessee Supreme Court

Page 61

438 S.W.2d 61

26 McCanless 499, 222 Tenn. 499

Charles Wayne SMITHSON v. STATE of Tennessee.

Supreme Court of Tennessee.

Jan. 24, 1969.

Thomas D. Steele, Nashville, for plaintiff in error.

George F. McCanless, Atty. Gen., and C. Hayes Cooney, Asst. Atty. Gen., Nashville, for the State.

OPINION

BURNETT, Chief Justice.

The plaintiff in error was convicted of passing a worthless check over the value of $100.00 in violation of T.C.A. 39--1959, and was sentenced for this offense for a period of not less than one (1) nor more than eight (8) years in the State penitentiary. A motion for a new trial was seasonably made, and, after being overruled, the case was appealed to the Court of Criminal Appeals, which court on motion of the State transferred the case to this Court because the only question involved in the case is a constitutional question.

Charles Wayne Smithson was indicted by the Williamson County Grand Jury at its January, 1968 Term, with fraudulently and feloniously obtaining property, a 1968 Chevrolet Camaro automobile, and credit from the Walker Chevrolet Company, a corporation, on October 12, 1967, by means of a check in the amount of $2,837.50 which was not paid by defendant after having been given five (5) days written notice to pay the same and after the defendant had stopped payment on said check at the drawee bank when it was presented for payment.

The sole assignment of error made on behalf of the defendant is that the statute under which the defendant was convicted, namely T.C.A. 39--1959, is unconstitutional on the grounds (1) that it is so vague, indefinite, and ambiguous as to violate the defendant's constitutional right to due process of law, and (2) that, under T.C.A. 39--1960, the presumption of intent to defraud and of insufficient funds in or on deposit with the drawee bank, corporation, firm or person created by the making, drawing, uttering or delivering of a check, draft or money order, payment of which is refused by the drawee and non-payment of such check, draft or order after five (5) days written notice to the maker or drawer, establishes a rule of evidence which unconstitutionally denies the defendant due process of law.

The old bad check law, which had been in force in this State for many years, was repealed by the Public Acts of 1967, Chapter 322, § 11 thereof, and the present statute governing such matters was enacted by that Chapter and is now codified in T.C.A., beginning at § 39--1959 et seq., and this is the first time in this State that the question here presented has been raised insofar as we can determine.

T.C.A. 39--1959 is sub-section (1) of Chapter 322, Public Acts of 1967, and this section makes it a criminal offense, either a misdemeanor or a felony depending upon the amount of the transaction involved, to make, draw, issue, utter or deliver with fraudulent intent a check, draft or order for the payment of money drawn on any bank, corporation, firm or person for the purpose of obtaining money, any article of value, or credit when the maker or drawer, at the time of such making, drawing, uttering or delivering knows that he or she does not have sufficient funds in or on deposit with such bank, corporation, firm or person to pay said check, draft, or order in full and also to pay all other checks, drafts or orders upon such funds then outstanding.

The following section, T.C.A. 39--1960, provides that the making, drawing, uttering or delivering of such a check, draft or order, payment of which is refused by the drawee shall, as against the maker or drawer thereof, be prima facie evidence and create a presumption of intent to defraud and of the knowledge of insufficient funds on deposit in the bank, corporation, firm or person, provided such maker or drawer shall not have paid the holder thereof the amount due thereon within five (5) days after receiving notice that such check, draft or order has not been paid by the drawee.

The next section, T.C.A. 39--1961, construes or defines the term 'notice' required in T.C.A. 39--1960 as including not only notice given to the person entitled thereto, namely the maker or drawer as stated in T.C.A. 39--1960 in person, but also written notice to such person and, further, provides that such written notice shall be presumed to have been given when it is deposited in the United States mail addressed to such person at his address as it appears on such person's check, draft or order, or addressed to his last known address.

The next section, T.C.A. 39--1962, provides that the aforesaid notice is not required when (a) the situs of the drawee is not the State of Tennessee, or (b) the drawer is not a resident of Tennessee or has left this State at the time of dishonor, or (c) when the drawer does not have an account with the drawee at the time the check, draft or order was issued or dishonored.

The next section, T.C.A. 39--1963 provides that the drawee has the duty, before refusing to pay the check, draft or order involved to the holder thereof upon presentation, to write, print or stamp thereon or attach thereto in plain language, the reason for the drawee's failure or refusal to honor the same. This section further provides that in all prosecutions under T.C.A. 39--1959 through 39--1967, the introduction in evidence of any unpaid and dishonored check, draft or other order for the payment of money, having the drawee's reason for refusal or failure to honorstamped or written thereon or attached thereto, shall be prima facie evidence of the making or uttering of said check, draft or other order for the payment of money and the dishonor thereof and that the same was properly dishonored for the reasonas written or stamped thereon or attached thereto by the drawee.

T.C.A. 39--1964 provides that the provisions of T.C.A. 39--1959 through 39--1967 also apply to checks, drafts or orders given by any employer, with fraudulent intent, to an employee for services performed by such employee. The next section, T.C.A. 39--1965, provides that each making, drawing, issuing, uttering or delivering of any such check, draft or order as aforesaid constitutes a separate offense. T.C.A. 39--1966 provides the penalties for the violation of T.C.A. 39--1959 through 39--1965, as follows: (1) when the amount for which the check, draft, or order is drawn does not exceed $100.00, it shall be a misemeanor punishable as provided in T.C.A. 39--105; and (2) when the amount for which the check, draft or order is drawn exceeds $100.00, the punishment is confinement in the penitentiary for not less than one (1) nor more than ten (10) years. This section also provides that the court may, upon recommendation of the jury in the event of conviction, substitute imprisonment in the county jail or workhouse in lieu of the penitentiary confinement and further that upon demand reasonably made by the defendant, the trial jury is empowered to assess all punishment as part of their verdict and may, in lieu of penitentiary confinement, substitute imprisonment in the county jail or workhouse for any time less than one (1) year.

The last section of this statute involved, which is codified at T.C.A. 39--1967, provides that in cases where prima facie evidence is presented as hereinabefore defined and notice given, if required, any person, firm or corporation causing the arrest of the drawer of such check, draft or order shall not be criminally or civilly liable for false arrest.

The facts only sufficient to show what was involved are all that can be considered here, because the bill of exceptions was not filed in time, but the technical record is sufficient for the questions herein raised and to be answered by this Court. The plaintiff in error did not take the stand on his behalf and he contends that the introduction of this check here involved with 'stop payment' on its face together with the written notice to make the check good within five (5) days created a presumption of intent to defraud and that the statute as worded raises such a presumption regardless of the reason for the refusal to honor the check. The plaintiff in error likewise asserts that such strong penal sanctions placed on a person for an act of this kind or forbearance which could in many instances be justified constitutes a denial of due process and is in irreconcilable conflict with the long established presumption of innocence.

It has always been held in this State that in order to warrant a conviction the prosecutor is required to discharge the burden imposed upon him by establishing by proof all the essential elements of the crime with which the man has been charged and to establish beyond a reasonable doubt that he is guilty of that crime, and when the proof does not establish that he is entitled to an acquittal. The argument of the plaintiff in error, it seems to us, is not borne out by the statute, because this statute does not make the defendant presumed guilty or to have the requisite intent to defraud the payee merely upon the bank's refusal to honor the same.

The presumption of intent to defraud and of knowledge of insufficient funds in or on deposit with the bank is by the express terms of the statute herein involved only when two requirements are met, namely, (a) that the check, draft or order is not honored when presented for payment and (b) the maker or drawer fails or refuses to pay the holder thereof the amount due thereon within five (5) days after receiving the notice of dishonor.

Section 39--1960, T.C.A., above, clearly, not ambiguously or uncertainly, states that as against the maker or drawer of a check, draft or order, the making, uttering, drawing or delivering of a check, draft or other order which is dishonored by the drawee shall be prima facie evidence and create a presumption of intent to defraud and of knowledge of insufficient funds in or on deposit with the drawee provided the maker or drawer does not pay the holder thereof the amount due within five (5...