State v. Bruce, 7830
| Decision Date | 05 November 1953 |
| Docket Number | No. 7830,7830 |
| Citation | 262 P.2d 960,1 Utah 2d 136 |
| Parties | d 136 STATE, v. BRUCE. |
| Court | Utah Supreme Court |
George S. Ballif, Provo, E. R. Callister, Jr., Atty. Gen., Richard J. Maughan, Salt Lake City, for appellant.
Alan H. Bishop, Salt Lake City, for respondent.
Defendant was charged with making and passing a worthless check for $1,075 for which he received titles to six used cars. The transaction occurred September 14, 1951; the check was postdated to September 17th. The court granted a motion to dismiss made by defendant and the State appeals to present to this court the question, whether a postdated check falls within the provisions of our bad check statute. 1
It apparently has been too generally assumed that the fact that a check is postdated is an invariable and absolute defense to a criminal charge for making and passing it. This has resulted in a good deal of mischief. Bad check artists, have in some instances, used the postdating of checks as a device to cheat unsuspecting persons and remain immune from prosecution. It is therefore deemed advisable to set forth the following discussion of the statute in question.
The portions of our statute relating to bogus checks, material to the present inquiry, are:
'Any person who * * * wilfully, with intent to defraud, makes * * * or delivers any check, * * * knowing at the time * * * that the maker * * * has not sufficient funds in, or credit with said bank * * * for the payment of such check, * * * is punishable * * *.
'The making, * * * or delivering of such check, * * * shall be prima facie evidence of intent to defraud.' (Emphasis added.)
The emphasized words indicate that the statute denounces the passing of a bad check only where there is misrepresentation that the maker has money or credit at the time the bad check is passed. It logically follows that it does not apply when both maker and payee know that the check is postdated. Under such circumstances the clear inference is that the maker has not money to pay the check at the time, but intends to cover it by the postdate. Where the payee accepts it with that understanding, he is not relying on a representation that the maker has money in the bank at the time, but rather that it will be covered when it is presented on its date. This amounts to a promise to be performed in the future. Obviously such a promise may be made in good faith, but plans go awry, unexpected or uncontrollable events intervene, or a bona fide change of mind occurs, any one of which would negative the existence of an intent to defraud at the time the check was passed, thus eliminating an element essential to constitute the crime. Such reasoning is the basis of the general rule that a promise of performance in the future will usually not support a charge of fraud. 2 We so held with respect to a postdated check in the case of State v. Trogstad. 3
Yet it should be here observed that we do not disagree with the contention of the State that the fact that a check is postdated is not necessarily, under all circumstances, an absolute defense to a criminal charge for making and passing it. A maker might pass a postdated check under such circumstances that the payee is misled into believing, or in the use of due care could reasonably assume, the check to be of current date, and accept it in the ordinary course of business. If such be the fact, and the evidence would support a finding beyond a reasonable doubt that at the time he passed the check the maker (1) knew that he had not sufficient funds or credit to cover it, and (2) that he then had a present existing intent to defraud, a case sufficient to go to the jury would be made out.
We have recognized that a man's intention or state of mind is a fact which may be proved, and if shown to be falsely represented may form a foundation for actionable fraud. 4 In the case of Hull v. Flinders, 5 we quoted with approval from Ruling Case Law the following:
'* * * the intention to deceive is a condition of mind, which, when it exists, is as much a fact as is a condition of the body, notwithstanding that it is more difficult to prove; * * * therefore, a misstatement of a man's mind is a misstatement of fact * * * [but] * * * to render nonperformance fraudulent the intention not to perform must exist when the promise is made, * * *.' 6
The authorities just referred to are civil, but the principle is the same. It would be but to torture reason to maintain that the state of mind is a fact which can be proved in a civil case but would not be so with respect to crimes.
Thus, even though making a prima facie case may involve proof of a state of mind, i. e., an intent not to keep a promise to be performed in the future, no insuperable obstacle is presented. It is conceivable that the evidence may show facts sufficient to demonstrate beyond a reasonable doubt that at the time the check was made the maker did so 'wilfully, with intent to defraud * * *.' Suppose for instance the evidence clearly indicated utter impossibility of the maker to perform. As a hypothetical case, assume a maker postdated a check when he had no account whatsoever and never had any intention of having one. To eliminate the possibility of argument or doubt, suppose further that in the presence of witnesses he had so declared and that he had a scheme to defraud the payee by the use of a postdated check because he knew that he would thus be immune from criminal prosecution; add to this the fact that he used active concealment, trickery or falsehood in leading the payee to believe the check was not postdated and that the circumstances were such that the payee, acting with due care, relied thereon and accepted the check as one of current date. Surely it would not then be contended that the maker should be rewarded for his chicanery and held immune from prosecution because he included the postdating of a check as part of his scheme to defraud.
We conclude that in spite of the difficulty in proving a present existing intent to defraud where the check is postdated, if the payee acting reasonably accepts the check as one of current date, and the facts would support a finding beyond a reasonable doubt that the defendant '* * * wilfully, with intent to defraud * * *' passes a worthless check, the question of his guilt of the crime should be submitted to a jury. 7
This approach accords with the purpose for which the statute was enacted. The rapid concourse of modern business and commerce requires the reliance upon many and often far-flung credit transactions, from city to city, across the nation and around the world. Its free flow and equilibrium depend upon the use of checks, drafts and other instruments evidencing debt and credit. The passing of worthless instruments of credit, although done by a very small minority, casts suspicion and doubt upon the honest and trusting; such abuses are so disrupting that they cannot well be tolerated. We agree with the thought aptly expressed by the Supreme Court of Missouri, 8 that such conduct to curb and prevent it.
Our legislature, by the bad check statute above quoted, has attempted to eliminate such annoyances by making them criminal and imposing penalties therefor. This purpose should not be defeated by an interpretation of the statute which would permit one bent upon fraud to protect himself by using a postdate on the check as a refinement upon his roguery. If the other requirements of the statute are met, there is no reason why one who criminally defrauds with a postdated check should not be held just as responsible as one who knowingly passes a bad check with a current date.
In the instant case, Mr. LeGrand Smith, who took the check, states that he did not notice that it was postdated. In attempting to prove the defendant's intent to defraud, the state produced evidence that the defendant's account had been closed, that he had had no money in the bank for over a month and that checks had been returned to him unpaid. Those facts, taken by themselves, would indeed seem very persuasive as to the defendant's fraudulent design at the time the check was passed. However, additional important facts shown by the evidence must be considered: Mr....
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