State v. DeClue, 51405

• Decision Date: 14 March 1966
• Docket Number: No. 2,No. 51405,51405,2
• Citation: 400 S.W.2d 50
• Parties: STATE of Missouri, Respondent, v. Ralph Carl DeCLUE, Appellant
• Court: Missouri Supreme Court

Page 50

400 S.W.2d 50

STATE of Missouri, Respondent, v. Ralph Carl DeCLUE, Appellant.

No. 51405.

Supreme Court of Missouri, Division No. 2.

March 14, 1966.

Norman H. Anderson, Atty. Gen., Jefferson City, James T. Buckley, Sp. Asst. Atty. Gen., sedalia, for respondent.

Michael J. Trombley, Columbia, for appellant.

FINCH, Judge.

Defendant was found guilty of obtaining property and services by means of a check drawn, with intent to cheat and defraud, on a bank in which he knew he had no funds. The information also charged defendant under the Habitual Criminal Act. The court found he had three prior felony convictions and sentenced him to seven years' imprisonment.

The charge against defendant on the check was based on § 561.450 (all references are to RSMo 1959 and V.A.M.S.). The language in the section with which we are concerned is as follows: 'Every person who, with the intent to cheat and defraud, shall obtain * * * from any other person, or persons, any money, property or valuable thing whatever * * * by means of a check drawn, with intent to cheat and defraud, on a bank in which the drawer of the check knows he has no funds * * * shall be deemed guilty of a felony * * *.'

The State's evidence will support this statement of facts: Defendant was paroled from the Missouri State Penitentiary to the Parole Officer in Boone County about July 1, 1963. He began work in Columbia, with the idea of enrolling in the University in September. He worked at the Journalism School and on July 23 received a loan of $100.00 from Dean English, to be repaid from subsequent pay checks. On July 24 defendant took the check to the Boone County National Bank. He opened an account by depositing $25.00, receiving the other $75.00 in cash. On the same day, before leaving the bank, defendant drew a check against the account for $25.00 which he cashed at the bank. This depleted and closed out the account and at the end of business on July 24, defendant had no funds in the Boone County National Bank.

On the same day, defendant deposited $50.00 in the Columbia Savings Bank. He drew a check against the account for $5.00, leaving a balance of $45.00. Defendant had opened an account in this bank on July 16 by depositing $5.00, but he drew five $1.00 checks and the account was exhausted on July 19 when the last $1.00 check was paid.

Defendant owned a 1956 Ford and on the morning of Friday, July 26, he took it to Crane's Auto Service where he requested repair of the transmission and replacement of the hood. Nothing was said about terms of payment or credit and when defendant returned late that afternoon for the repaired automobile, he was presented with a bill for $81.15 for parts and labor. Defendant wrote a check dated July 26, 1963, for $81.15 to Crane's Auto Service on the Boone County National Bank. Defendant did not request that the check be held and did not state that he had no money in the bank. He simply wrote and delivered the check in payment of the statement for parts and labor. Defendant had made no further deposits in the Boone County National Bank and on July 26, 1963, he had no funds on deposit in that bank.

Crane's Auto Service deposited the $81.15 check in the Columbia Savings Bank. The evidence is not clear as to whether this was on Monday or Tuesday. On Tuesday, July 30, it was endorsed by the Columbia Savings Bank and presented to the drawee bank. Later in the day word was received by Crane's Auto Service from the Boone County National Bank that the check was not being honored. It was returned to the garage marked 'Acct. Closed.' This notation was placed thereon by the bank's bookkeeping department. An officer of the bank testified that defendant had no funds in the Boone County National Bank after the account was closed out on July 24 and he had no funds in the bank on July 26, the date of the $81.15 check, or on any date thereafter.

Meanwhile, on Saturday, July 27, defendant and his fiancee had driven to St. Louis and Graniteville to visit, returning early in the afternoon on Monday, July 29. Shortly thereafter defendant was arrested by the police on a probation and parole violation warrant issued by the Parole Officer for leaving Boone County contrary to the conditions of his parole. A second warrant issued by the Parole Officer later that day added as a reason that defendant was suspected of giving several bad checks.

Defendant testified that he thought the $25.00 check cashed by him on July 24 was on the Columbia Savings Bank rather than the Boone County National Bank and he did not know he had depleted his account in the Boone County National. He further testified that during this period of time his fiancee had $150.00 of his money which he had turned over to her to hold for him and that he had $51.00 in cash on his person when he was arrested.

On cross-examination defendant identified three checks for $25.00 each, all dated July 24, 1963, and payable to Cash which he wrote on the Boone County National Bank. One was endorsed by Gerbes Super Market, Inc., one by The Missouri Store Co., and one by the University Book Store. Two are marked 'Acct. Closed' and one 'Not Sufficient Funds.' Defendant also identified three checks drawn by him on the Boone County National Bank dated July 25, 1963, all payable to Cash, for sums of $25.00, $50.00 and $50.00, respectively. These bore endorsements of The Missouri Store Co., University Book Store and The Great Atlantic and Pacific Tea Co., Inc., and all three were stamped 'Not Sufficient Funds.' Defendant also identified a check drawn by him on the Columbia Savings Bank dated July 16, 1963, to Cash for $25.00. It was endorsed by Glenn's Cafe and is marked 'Acct. Closed.'

The first point for consideration is whether defendant's motion for a directed verdict of acquittal should have been sustained. This involves primarily an examination of defendant's assertion that the State failed to prove an intent on the part of defendant to cheat and defraud.

There can be no question but that defendant issued the check for $81.15 to Crane's Auto Service in return for which he received parts and services used in repairing his automobile. It is clear that on July 26, 1963, the day the check was dated and issued, defendant had no funds in the bank on which it was drawn. ¹ There was ample evidence from which the jury could have found that defendant knew he had no funds in the Boone County National Bank at the time he drew the check in question. Defendant had deposited only $25.00 on July 24 and he had withdrawn that amount by a check written and cashed at the bank on the same day. The evidence so established, and defendant, when questioned about Exhibit 4 (the $25.00 check on the Boone County National Bank which he cashed while in the bank that day), admitted that such was the case. His only excuse or justification for claiming that he did not know that he had completely exhausted the account on the 24th was his statement that he thought the check for $25.00 which he wrote and cashed on the 24th was on the Columbia Savings Bank. The jury could and obviously did disbelieve such explanation. (If this had been true, the six other checks written on the 24th and 25th amounted to $200.00, whereas the only deposit ever made was $25.00.) There was ample evidence, therefore, to show knowledge on the part of defendant that the check to Crane's was issued on a bank in which he had no funds.

This leaves only the question of whether there was sufficient evidence of intent to cheat and defraud. There was no oral statement by defendant to Crane's when the check was given to the effect that defendant had the money in the bank and that the check would be paid on presentation. Such an affirmative representation is not necessary. The mere issuance and delivery of the check constitutes such a representation. We so held in State v. Griggs, Mo., 236 S.W.2d 588, 590, and State v. Hartman, 364 Mo. 1109, 273 S.W.2d 198, 205. Under the facts of this case, the issuance and delivery of the check was a false representation and the jury could have so found. Was it a false representation made with intent to cheat and defraud? Evidence of six other checks issued by the defendant on the same bank on the two days preceding July 26 were introduced by the State for the purpose of showing such intent. Defendant raises a question as to their admissibility, which we will consider later. Even without those other checks being in evidence, we hold that under the facts of this case the jury could find an intent on the part of the defendant to cheat and defraud from the issuance and delivery of the no funds check. Not only did defendant have no funds in the drawee bank; he had made no arrangements with the bank whereby the check would be honored on presentation. He simply knowingly gave a check on a bank where he had no funds. The jury could, under such state of facts, find from defendant's actions an intent on his part to cheat and defraud. Such question of intent is determined as of the time of the issuance of the no funds check, not, as defendant suggests, as of the time of presentation for payment at the bank. State v. McWilliams, Mo., 331 S.W.2d 610, 612.

This is not a case involving an insufficient funds check under § 561.460, wherein such questions as subsequent diminution of the account by other checks, payment of previous overdrafts by the bank, deposits made between the date of the check and the time of its presentation, and similar questions might arise. It was an insufficient funds check, not a no funds check, with which the court was dealing in State v. Taylor, 335 Mo. 460, 73 S.W.2d 378, 95 A.L.R. 476, cited by defendant, where something was said to the effect that the test of sufficiency of the check comes at the time of its presentation for payment. We are considering only the question of intent with reference to a no funds check under § 561.450. Since this intent is determined as of the time when the...