State v. Griffith

• Decision Date: 18 December 1981
• Docket Number: No. 14786,14786
• Citation: 285 S.E.2d 469,168 W.Va. 718
• Parties: STATE of West Virginia v. Carolyn GRIFFITH.
• Court: West Virginia Supreme Court

Page 469

285 S.E.2d 469

168 W.Va. 718

STATE of West Virginia v. Carolyn GRIFFITH.

No. 14786.

Supreme Court of Appeals of West Virginia.

Dec. 18, 1981.

Syllabus by the Court

1. Bank ledgers of a customer's account are probative and admissible evidence, though certainly not conclusive, that the customer had knowledge of lack of funds when he or she drew checks on the account for which there was prosecution under our Worthless Check Statute, W.Va.Code, 61-3-39.

2. The Supreme Court of Appeals will not decide constitutional challenges to a statute unless that question is necessary to a decision in the case.

C. Blaine Myers, Parkersburg, for appellant.

Chauncey H. Browning, Atty. Gen., and Robert S. Digges, Jr., Asst. Atty. Gen., Charleston, for appellee.

HARSHBARGER, Chief Justice:

Carolyn Griffith was convicted by a Wood County jury for violating Code, 61-3-39, our Worthless Check Statute. ¹ She challenges her felony conviction because the trial court admitted evidence over her objection of a ledger showing transactions on her bank account, refused to give two of her proffered instructions and because the statute is unconstitutional.

On January 12, 1978, Ms. Griffith received property from Radio Shack in exchange for a $262.45 check drawn on Peoples Banking and Trust Company of Marietta, Ohio. The check was returned to Radio Shack stamped "account closed". At trial a ledger of her account was admitted into evidence, revealing that her account was opened with a $253.26 deposit in September, 1977; that no other deposits were made; and that when she wrote Radio Shack's check her account had been closed because it was overdrawn by a substantial sum. The State introduced this evidence to prove defendant had knowledge that the check was worthless (an element of this felony is knowledge that there were insufficient funds to cover the check).

Defendant asserted that a ledger kept by a bank does not prove customer knowledge about its revelations unless there is evidence that account statements were received by the customer. Trial evidence showed that statements were mailed by the bank, but defendant denied receiving them. See National Grange Mutual Insurance Company v. Wyoming County Insurance Agency, Inc., 156 W.Va. 521, 195 S.E.2d 151, 155 (1973) (wherein an insurance notice placed in the mail created a rebuttal presumption of receipt). Evidence that defendant received statements would enhance the State's proof, but the ledger is probative and admissible, Syllabus Point 1, State v. Frantz, 108 W.Va. 639, 152 S.E. 326, cert. denied, 281 U.S. 767, 50 S.Ct. 465, 74 L.Ed. 1174 (1930), although certainly not conclusive proof of knowledge. Defendant had an opportunity to persuade the jury that the ledger was not accurate, but had no such evidence.

The trial court's refusal to give Griffith's instructions 1 ² and 3 ³ was not reversible error, because State's Instruction 1 ⁴ listed all elements of the crime and proof required, including those factors set out in the refused instructions. "It is not error for a court to refuse to give a repetitive instruction." State v. Demastus, W.Va., 270 S.E.2d 649, 659 (1980).

Griffith's final argument challenged the constitutionality of our 1977 Worthless Check Statute because (1) it is a facade for debt collection, (2) defendant's criminality is dependent upon her bank's willingness to "cover" her worthless checks, (3) Code, 61-3-39a through 61-3-39g are unconstitutionally vague, and (4) Code, 61-3-39c and 61-3-39d create unconstitutional presumptions of guilt.

The statute was amended in 1977 by revising 61-3-39 and adding subsections 39a through 39g. ⁵ Code, 61-3-39 relates to the knowing issuance of a worthless check in order to obtain any money, services or things of value. It is akin to obtaining property or labor by false pretenses, a Code, 61-3-24 crime, including similar provisions delineating felonies from misdemeanors based on the value of "property" taken. Code, 61-3-39a, a different crime, makes it a simple misdemeanor to issue a "worthless check" for a preexisting debt. Griffith was prosecuted for violating the felony provision of Code, 61-3-39. Any asserted statutory ambiguities in Code, 61-3-39a or in subsections about misdemeanor violations do not apply to her conviction. She concedes in her brief that Code, 61-3-39 alone is not vague or ambiguous (and we agree) and that the presumptions in Code, 61-3-39c and 39d were not applied to her. ⁶

It is a well settled principle that courts do not generally pass on the constitutionality of challenged statutes unless that question is necessary to the decision of the case.

State ex rel. Myers v. Wood, 154 W.Va. 431, 175 S.E.2d 637, 642 (1971).

Whether Code sections 61-3-39a through 39g are constitutional, Code, 61-3-39, which establishes the offense, can stand alone and suffers none of the constitutional infirmities alleged to invalidate subsequent sections. See State v. Flinn, W.Va., 208 S.E.2d 538 (1974); State v. Heston, 137 W.Va. 375, 71 S.E.2d 481 (1952).

Banks can choose to honor otherwise "worthless checks", and their doing so does not create due process or equal protection rights for check writers whose paper they choose not to cover. A bank's decision to pay a customer's "bad check" relates to whether a customer has established credit with his bank and not to the statute's constitutionality. The Code, 61-3-39, crime is knowingly issuing a check for something of value without sufficient funds or credit to pay the same. If one knows there are neither sufficient funds nor credit to cover his check, the crime is committed.

The debt collection device argument is also inapplicable. The statute does permit dismissal of a misdemeanor criminal charge upon payment of the check, Code, 61-3-39g, but only when a misdemeanor is charged. Griffith was convicted and punished for a felony; the notice and payment procedures to which she now objects, were not applicable to her. ⁷ Code, 61-3-39b, clearly denies a felony defendant the right to have charges dismissed upon payment of his check.

Affirmed.

1 W.Va.Code, 61-3-39:

"It shall be unlawful for any person, firm or corporation to obtain any money, services, goods or other property or thing of value by means of a check, draft or order for the payment of money or its equivalent upon any bank or other depository, knowing at the time of the making, drawing, issuing, uttering or delivering of such check, draft or order that there is not sufficient funds on deposit in or credit with such bank or other depository with which to pay the same upon presentation. The making, drawing, issuing, uttering or delivery of any such check, draft or order, for or on behalf of any corporation, or its name, by any officer or agent of such corporation, shall subject such officer or agent to the penalties of this section to the same extent as though such check, draft or order was his own personal act, when such agent or officer knows that such corporation does not have sufficient funds on deposit in or credit with such bank or depository from which such check, draft or order can legally be paid upon presentment.

"This section shall not apply to any such check, draft or order when the payee or holder knows or has been expressly notified prior to the acceptance of same or has reason to believe that the drawer did not have on deposit or to his credit with the drawee sufficient funds to insure payment as aforesaid, nor shall this section apply to any postdated check, draft or order.

"No prosecution shall be confined to the provisions of this section by virtue of the fact that worthless checks, drafts or orders may be employed in the commission of some other criminal act.

"Any person who shall violate the provisions of this section, if the amount of the check, draft or order is less than two hundred dollars, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than two hundred dollars, or imprisoned not more than six months, or both fined and imprisoned. Any person who shall violate the provisions of this section, if the amount of the check, draft or order is two hundred dollars or more, shall be guilty of a felony, and, if convicted thereof, shall be fined not more than five hundred dollars, or imprisoned not less than one year nor more than five years, or both fined and imprisoned."

2 Defendant's Instruction No. 1:

"It is an essential element of the offense and must be proved by the State of West Virginia beyond a reasonable doubt that the Defendant, CAROLYN GRIFFITH, at the time of the making and presenting of the check to Radio Shack knew that there were not sufficient funds on deposit at the bank to pay the check upon presentation.

"If you are not satisfied beyond a reasonable doubt that she knew at the time of the making and presenting of such check that there were not sufficient funds to cover payment of the same upon presentation, then you may not find her guilty, but must find her NOT GUILTY.

"/s/ Refused, A. N. Gustke,

Judge"

3 Defendant's Instruction No. 3:

"The check...