State v. Daymus, 1190

• Decision Date: 27 December 1961
• Docket Number: No. 1190,1190
• Parties: STATE of Arizona, Appellee, v. Gary DAYMUS, Appellant.
• Court: Arizona Supreme Court

Page 647

367 P.2d 647

90 Ariz. 294

STATE of Arizona, Appellee, v. Gary DAYMUS, Appellant.

No. 1190.

Supreme Court of Arizona, In Banc.

Dec. 27, 1961.

Rehearing Denied Jan. 23, 1962.

Shelley & Holroyd, Phoenix, for appellant.

Wade Church, former Atty. Gen., Robert W. Pickrell, present Atty. Gen., and John A. Murphy, Jr., Asst. Atty. Gen., for appellee.

JENNINGS, Justice.

Defendant Gary Daymus (true name Eugene Suchoedolsky) appeals from a conviction of issuing a check on insufficient funds.

Defendant did business as International Motor Plaza buying and selling imported automobiles. On April 9, 1960, he signed a check in the amount of $3,135 payable to Stallings Motors drawn on an International Motor Plaza account with the First National Bank of Arizona at Scottsdale, Arizona, and caused the check to be delivered to payee as payment for a Borgward automobile. Stallings Motors delivered the automobile and its title papers to defendant's salesman. The payee was not informed that the check was anything but a cash item for immediate payment. The check was presented for payment on two occasions (April 10th and April 13th) and was returned by the drawee bank each time for insufficient funds to cover it. Later the check was left with the bank where it remained for several days for collection. When it was not paid criminal action against defendant was begun.

Defendant presents a number of questions which require an analysis of A.R.S. § 13-316, the statute under which the charge was brought.

Section 13-316, subd. A.

'A person who, for himself or for another, wilfully, with intent to defraud, makes, draws, utters or delivers to another person a check or draft on a bank or depositary for payment of money, knowing at the time of such making, drawing, uttering or delivery, that he or his principal does not have sufficient funds in, or credit with, such bank or depositary to meet the check or draft in full upon presentation, shall be punished as follows: * * *.'

Section 13-316, subd. B.

'The word 'credit' as used in this section shall be construed to be an arrangement or understanding with the bank or depositary for payment of the check or draft. * * *'

The essence of the offense thus is the uttering of a check with knowledge there are no funds or credit with the bank to meet it and with intent to defraud.

At the close of the State's case defendant moved for a directed verdict which was denied. Error is claimed on the basis that the State failed to show: (1) that the account was insufficient on the day it was written; (2) that prior checks had been written which would deplete the account; and (3) that there was no credit arrangement with the drawee bank.

State's Exhibit 2, the bank's ledger cards for defendant's account, was admitted into evidence. This indicated a balance at the close of business on April 9, of $5,316.86. Edward J. Larkin, manager of the drawee bank, testified that while deposits by defendant of checks or drafts were posted to the ledger, the funds covered thereby were not available for withdrawal until the drafts or checks had been honored. He testified that on the day the check was written and thereafter there were no funds available to cover the subject check. The witness described that during the period March 20, 1959 up to and including April 9th, the date of the check, a number of checks were presented for which there were not sufficient funds; that the witness called defendant on at least nine occasions and requested him to deposit funds; that defendant did deposit funds to pay some checks which he designated and that the checks not so covered were returned unpaid and that the witness had such a conversation with defendant on April 9th.

The ledger cards show that on April 10th there were 41 checks paid leaving a balance of $1,247.55. On April 13 there was a balance of $414.71, after payment of 25 checks.

Larkin testified that the bank had no arrangement with defendant whereby it would extend credit or honor checks in the absence of sufficient funds to take care of them and that defendant was told the bank would not pay checks drawn on uncollected funds.

The ledger cards show that on one occasion (March 27) there was an overdraw of $3,247.57. Defendant urges that the described overdraw conclusively shows the existence of a credit arrangement with the bank. At best this raises only a conflict in the evidence. From the foregoing the State made a case sufficient to take to the jury the questioned matters and the directed verdict was correctly denied.

Defendant contends that the court erred in admitting State's exhibits 4, 5 and 12 into evidence. Exhibits 4 and 5 comprise 'rejected check' records kept by the First National Bank showing checks drawn on the International Motor Plaza account which were not paid upon presentation for insufficient funds. Exhibit 4 covers a period from April 24, 1959 to June 1, 1959, and Exhibit 5 covers a period from March 20, 1959 to April 30, 1959. Exhibit 12 is a group of checks written on the International Motor Plaza by defendant during a period from April 13, 1959 to April 24, 1959, all of which were returned for insufficient funds. The general objection made is that evidence of other offenses committed by the defendant distinct and independent of that for which he is on trial is not admissible. This, of course, is the general rule. State v. Thomas, 71 Ariz. 423, 229 P.2d 246. However, it is also true that such evidence is admissible if it tends to establish an essential element of the offense charged. In Arizona the law is well settled that evidence of other crimes is competent when it tends to establish motive, intent, absence of mistake or accident, identity and common scheme or plan. Crowell v. State, 15 Ariz. 66, 136 P. 279; Lewis v. State, 32 Ariz. 182, 256 P. 1048.

Defendants claim the foregoing rule does not apply because the exhibits contain items subsequent in time to the subject check of April 9th. This Court previously has allowed evidence as to subsequent acts. State v. Martin, 74 Ariz. 145, 245 P.2d 411. In the Martin case page 149, 245 P.2d page 413, the Court said:

'The cases uniformly hold that testimony tending to show a continuing plan or system of which prior or subsequent transactions directly involved was a part is competent as bearing on the issue of intent. Such testimony must, of course, have reference to the period of time during which such plan or system was in operation, including preliminary matters or agreements involved in the establishment of such system and relating to the method of operation thereunder in support of the exception to the rule that evidence of crimes other than that charged is inadmissible.'

Defendant cites the following language from State v. Kuhnley, 74 Ariz. 10, 18, 242 P.2d 843, 848, in support of his position, to wit:

'We believe it is true as the defendant contends that unless the goods were shown to have been received before those which were charged in the information that they would not be admissible to show the defendant's guilty knowledge, * * *.'

However, the remainder of the sentence states:

'* * * but it is also true that they would be admissible regardless of when they were received to show a common scheme, plan or system.'

In that case which involved a charge of receiving stolen property, this Court did not apply either section of the above-quoted statement. Rather the articles were held inadmissible because there was no showing that they were stolen.

The proper test is whether the offered evidence will raise an inference in favor of the existence of the fact to be proved. Thus, the time at which the act or conduct occurred is a factor only as it tends to affect the relevancy of the conduct to the element to be proved. 2 Wigmore on Evidence, 3d ed. section 316. See also People v. Weir, 30 Cal.App. 766, 159 P. 442.

The exhibits herein show a continuing pattern whereby checks were drawn by defendant without sufficient funds to cover them upon presentation. That some items occurred subsequent to the check of April 9th cannot render them irrelevant toward an inference that the defendant was engaged in an operation of writing checks wherein sufficient funds were not available and this check was a part of the plan.

Error also is claimed that there is no showing that the transactions were identical to the subject incident. Wherein the transactions differed is not pointed out. In any event, there is no necessity that they be identical in all respects. The incidents need only be similar enough that a reasonable man could believe the person who had done the one had done the other. Lewis v. State, 32 Ariz. 182, 256 P. 1048; Vigil v. State, 33 Ariz. 51, 262 P. 14.

Jan Morrow was the first witness called to the stand on behalf of the defendant. Immediately after preliminary questions which identified the witness, her capacity as bookkeeper-office manager for the defendant and that she took care of all the books and bank deposits and wrote the checks, the following questions and answers were given:

'Q. Mrs. Morrow, I hand you what's been marked as Plaintiff's Exhibit One in evidence, and ask you if that is familiar to you? A. Yes, sir.

'Q. Was that prepared by you? A. Yes, it was.

'Q. Are you able, at this time, to recall the exact circumstances surrounding the transaction concerning the preparation and delivery of this instrument? A. Well, Mr. Daymus asked me to make up the check and I did, and I gave it to Mr. Smith, our Sales Manager.

'Q. You do recall delivering it to Mr. Smith? A. Yes.

'Q. At the time you delivered it to Mr. Smith do you recall any instructions given him concerning the manner in which this check was to be handled?

'Mr. Leverant: Objection; if that is the conversation between this witness and Mr. Smith as being hearsay.

'The Court: Sustained.

'Mr. Shelley: I asked the witness if there was a statement made by her, and not whether or not there was a...