State v. Campbell
| Decision Date | 22 December 1975 |
| Docket Number | No. 11838,11838 |
| Citation | 543 P.2d 1171,97 Idaho 331 |
| Parties | STATE of Idaho, Plaintiff-Appellant, v. Willam Delos CAMPBELL, Defendant-Respondent. |
| Court | Idaho Supreme Court |
Wayne L. Kidwell, Atty. Gen., Gordon S. Nielson, Sr., James W. Blaine, Lynn e. Thomas, Deputy Attys. Gen., Boise, for plaintiff-appellant.
Phillip M. Becker, Becker, Swenson & Shaw, Gooding, for defendant-respondent.
On August 24, 1974, the defendant respondent William Delos Campbell, doing business as Campbell's Construction, issued to one Bill Conner, an employee, a check in the amount of $82.01 as payment for wages earned the previous week. Conner cashed the check at Cook's Market in Jerome, but the bank subsequently returned the check unpaid to Cook's Market because there were insufficient funds in Campbell's account. Cook filed a complaint against Campbell alleging a violation of I.C. § 18-3106(b), 1 issuing a check upon insufficient funds in an amount over $25.00. By a second amended information the defendant Campbell was charged with uttering a check in the amount of $82.01 to Bill Conner, an employee of Campbell's Construction Co., '. . . as payment for past due wages, . . .' with intent to defraud Bill Conner.
The district court granted the defendant's motion to dismiss the second amended information on the ground that the state had alleged on the face of the information that the check was for payment of a preexisting indebtedness and thus it would be impossible to convict the defendant of a crime under I.C. § 18-3106(b) because the requisite 'intent to defraud' was rebutted by the fact that the check was issued for a pre-existing indebtedness. The state has appealed from the order granting defendant's motion to dismiss the information. I.C. § 19-2804(1).
The issue raised by the defendant's motion to dismiss the information has been raised in several other jurisdictions with varying results. See Annot.: Construction and effect of 'bad check' statute with repspect to check in payment of pre-existing debt, 59 ALR2d 1159 (1958); State v. Blasi, 64 N.J. 51, 312 A.2d 135 (1973), concurring and dissenting opinion, footnote 1, at 137. The argument in support of the trial court's action is that when the defendant issued the worthless check to his creditor the creditor's position was unchanged and the pre-existing obligation remained, and thus the defendant obtained nothing of value. Further, since the defendant could not defraud the creditor under these facts, the defendant could not have an intent to commit fraud. This argument has had significantly more success in jurisdictions which require that something of value be obtained by means of a worthless check, e.g., Hoyt v. Hoffman, 82 Nev. 270, 416 P.2d 232 (1966); West Virginia v. Stout, 142 W.Va. 182, 95 S.E.2d 639 (1956); State v. Davis, 26 N.M. 523, 194 P. 882 (1921). The Idaho statute, however, does not require that something of value be obtained by means of the worthless check.
Initially it should be observed that the defendant was not prosecuted under I.C. § 18-3101, obtaining money, property or labor under false pretenses. That statute, which is a condification of the false pretenses crime at common law, is distinguishable from I.C. § 18-3106, because that crime requires that the victim actually be defrauded of something of value. State v. Whitney, 43 Idaho 745, 254 P. 525 (1927). The essence of the crime under I.C. § 18-3106, however, is in the wilful making, drawing, uttering or delivery of a check drawn on a non-existent account or an account which is insufficient to pay the amount, with an intent to defraud. In State v. Campbell, 70 Idaho 408, 219 P.2d 956 (1950), this Court held that it is not 70 Idaho at 414-415, 219 P.2d at 960. If the defendant has committed acts sufficient to constitute a crime under I.C. § 18-3106 and was successful in defrauding his victim, the state may choose to prosecute under the provisions of § 18-3101. State v. Roderick, 85 Idaho 80, 375 P.2d 1005 (1962).
In enacting I.C. § 18-3106, the legislature provided a rebuttable presumption that the maker of an insufficient funds check has the requisite intent to defraud. Subsection (d) of the statute provides in relevant part:
'(d) As against the maker or drawer thereof, the making, drawing, uttering or delievering of such check, draft or order as aforesaid shall be prima facie evidence of intent to defraud and of knowledge of no funds or insufficient funds . . ..'
Ordinarily, the prosecution can rely on this presumption in establishing a prima facie case, while the defendant can then introduce rebuttal evidence of lack of knowledge or intent to defraud. The presumption has the effect of preventing a court from ruling as a matter of law that the defendant did not have the requisite knowledge or intent, thus preserving the issue for the jury. Cf. State v. Sedam, 62 Idaho 26, 107 P.2d 1065 (1940).
However, there the prosecuting attorney, in the second amended information, specifically pled that the check was given '. . . as payment for past due wages . . ..' Having thus pled what would ordinarily be a defensive matter, we must answer the following two questions. First, can a criminal prosecution be brought under I.C. § 18-3106(b) when the insufficient funds check was issued in payment of a pre-existing debt; and secondly, what is the effect of such a showing on the presumptions raised by subsection (d) of the statute?
As previously noted, one who issues a bad check in payment of a pre-existing bebt ordinarily does not improve his financial position vis-a-vis his creditor, nor does the victim ordinarily suffer any financial damage by accepting it. Under such circumstances, it is improbable that the creditor is defrauded or that his debtor had an intent to defraud. Nevertheless, under the facts of this case, it is conceivable that had the defendant Campbell not paid his employee on that date the employee would not have returned to work the following work day. Thus, the defendant may have issued the check to keep his employee working, knowing that eventually when the check was later returned the employee would probably quit. Other situations may be hypothesized. A creditor may be persuaded to forego bringing suit or taking other action to collect a debt in reliance upon the receipt of the check. Thus, issuing a check for a pre-existing debt could be shown to be part of a scheme in which an intent to defraud is evident. In the instant case an investigation of the reason that the defendant issued the check in question, therefore, could disclose the requistie intent to defraud.
We hold that the fact that the check was issued in payment of a pre-existing obligation does not preclude criminal prosecution under I.C. § 18-3106. Accord: State v. Bradley, 190 Wash. 538, 69 P.2d 819 (1937); State v. Meeks, 30 Ariz. 436, 247 P. 1099 (1926); State v. Lowenstein, 109 Ohio St. 393, 142 N.E. 897 (1924). The second amended information charges that the check was issued with intent to defraud Bill Conner, and the state is entitled to have the chance to prove that.
A more difficult question is raised in considering the effect that the prosecution's pleading that the check was in payment of a pre-existing obligation has on the presumptions raised in subsection (d) of the statute. The language of that section applies to any situation in which the defendant knowingly issues an insufficient funds or a no funds check. The legislature did not distinguish between checks issued for past indebtedness or for present indebtedness. We are of the opinion, however that the presumption of intent to defraud cannot constitutionally be applied in that narrow class of cases where it is shown that the insufficient funds check was given in payment of a pre-existing obligation. We reach this conclusion in light of the prior decisions of this Court, and the decisions of the United States Supreme Court which have limited and defined the role of statutory presumptions in criminal prosecutions under the due process clause of the United States Constitution.
The prevailing test as propounded by the United States Supreme Court is that 'a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, (that is) if the inference of the one from proof of the other is arbitary because of lack of connection between the...
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