State v. Cameron
| Decision Date | 13 November 1962 |
| Docket Number | No. 50748,50748 |
| Citation | 117 N.W.2d 816,254 Iowa 505 |
| Parties | STATE of Iowa, Appellee, v. Henry CAMERON, a/k/a Henry Salecker, Appellant. |
| Court | Iowa Supreme Court |
Edward Flattery and Mark McCormick, Fort Dodge, for appellant.
Evan Hultman, Atty. Gen., John H. Allen, John C. Cortesio, Asst. Attys. Gen., and Howard Hamilton, Webster County Atty., for appellee.
On December 1, 1961, a person giving the name of Henry Cameron purchased a pistol and box of shells at Kautzky's, a sports goods store in Fort Dodge. In payment he gave a check in the amount of $33.25. Leonard Will, the manager of the store, made the sale. The purchaser also signed an affidavit as required by Iowa law which gave his name, address--stated as Route 3, Bx. H 2, Fort Dodge, Iowa--his occupation, stated as 'farmer', and told Will he resided near Lehigh, a small town in the vicinity of Fort Dodge. His age was stated as 37. Will was unable to positively identify the defendant as the man who gave him the check and received the merchandise. He said, however, that the defendant was very near the same stature as that of the man who gave him the check: The check was sent to the Union Trust and Savings Bank of Fort Dodge and was returned marked 'No Acct.' The defendant was shortly apprehended in Eldora and returned to Fort Dodge, where he was indicted, tried, convicted and sentenced for the crime of false uttering of a check in violation of code Section 713.3, I.C.A. and so brings his appeal to this court.
I. The unusual nature of the check involved brings the first difficulty in the case, and leads to the inescapable conclusion that the judgment of the trial court must be reversed. We set out a copy of the check.
72-18 59/713
Lehigh, IOWA
12-1-61
Pay to the order of Kautzkys $33.25
Thirty Three & 25/100 Dollars
For ________
Rt. #3 Bx. H 2 Ft Dodge
Acc. # A2251 It will be at once observed that the location of the drawee bank, the Union Trust & Savings Bank, is nowhere set out as is customary with bank checks. On the date line the words 'Fort Dodge, Iowa' were printed; but the words 'Fort Dodge' were obliterated and the word 'Lehigh' substituted. If there is any place of location of the bank upon which the check was drawn, it is found only in the word 'Lehigh'. It will be noted that the indictment in the case refers to 'a false check, drawn on the Union Trust & Savings Bank of Lehigh, Iowa'. Without much doubt, the ordinary person looking at the check in question would conclude that it was drawn on a bank of that name in Lehigh. If we do not accept Lehigh as the location of the bank, there is no location, and so no definite bank, specified.
However, for a reason not explained in the record, the check was presented to the Union Trust & Savings Bank of Fort Dodge, was by it rejected and returned to the payee, Kautzky's, with the notation 'Returned by Union Trust & Savings Bank, Fort Dodge, Iowa; returned unpaid for reason indicated--No Acct.'
Why the check was presented to a bank in Fort Dodge upon which it was not drawn we are not told. We may speculate that in fact the Union Trust & Savings Bank of Fort Dodge had an office in Lehigh and kept all records of deposits, etc., in the home bank at Fort Dodge; but this is purely conjecture. We do not take judicial notice of the location of banks or their names in various places. On the record, we have only a check drawn on a bank in Lehigh or on a bank in an unnamed location, which was presented to a bank in Fort Dodge and by it returned unpaid. Much of the prosecution's case depends on a showing that the check was presented to the bank upon which it was drawn; but there is no proof of this.
Section 713.3 provides that one who with fraudulent intent makes, utters or gives any check drawn upon any bank and who secures any thing of value therefor, and who knowingly does not have an arrangement, understanding, or funds with such bank sufficient to meet or pay the check so drawn, is guilty of the offense of false uttering of a check. Section 713.4 makes the fact that payment of a check is refused by the bank upon which it is drawn when presented in the usual course of business material evidence of such lack of arrangement, understanding or funds to meet it. The trial court in its Instruction No. 7 paraphrased these sections, closing with these words: 'You are further instructed that the fact that payment of said check when presented in the usual course of business by the bank upon which it is drawn shall be material and competent evidence of such lack of arrangement, understanding or lack of funds.'
The court was here telling the jury it might find a vital element of the case upon non-existent evidence. In the absence of any showing that the check had been presented to a definite bank upon which it was drawn this instruction was erroncous and highly prejudicial. We discussed Section 713.4, supra, in State v. Lansman, 245 Iowa 102, 60 N.W.2d 815; but in the absence of a definite showing that the check was presented to the bank on which it was drawn the section has no application.
The state says there was other evidence that the defendant had no account at any bank. This is true; there is testimony of a police officer that he so stated. But this hardly answers the question. The admission of erroneously prejudicial evidence, or an erroneous instruction which presumes there is evidence which there is not, is not cured by other evidence tending to prove the same point. We can not know which the jury believed. Nor does the statement relied upon, that defendant admitted he had no account in any bank, quite meet the requirements of the statute in any event. There is included the necessity for the state to prove that the defendant not only had no account, but that he had no arrangement or understanding with the drawee bank to pay the check. Such an arrangement may be had even in the absence of sufficient funds.
II. A reversal is required by what has been said in Division I. However, the defendant urges other grounds for reversal which will in all probability arise upon another trial and so must be discussed. Section 755.17, Code of 1962, I.C.A. adopted by the Iowa Legislature in 1959 by Chapter 373, Acts of the 58th General Assembly, provides: ...
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