State v. Haremza, 47039

• Decision Date: 03 November 1973
• Docket Number: No. 47039,47039
• Parties: STATE of Kansas, Appellant, v. Robert A. HAREMZA, Appellee.
• Court: Kansas Supreme Court

Page 1217

515 P.2d 1217

213 Kan. 201

STATE of Kansas, Appellant, v. Robert A. HAREMZA, Appellee.

No. 47039.

Supreme Court of Kansas.

Nov. 3, 1973.

Syllabus by the Court

1. The legislature may exercise control over the rules of evidence, and hence may pass a law declaring that upon proof of one fact another fact may be presumed, thereby creating a statutory presumption.

2. Statutory presumptions are rebuttable. A rebuttable statutory presumption only governs the burden of going forward with the evidence, and even when it operates against a defendant in a criminal case, it does not alter the ultimate burden of proof resting upon the prosecution, nor deprive the defendant of the benefit of the presumption of innocence.

3. A statutory presumption will be upheld as constitutional if, in accordance with the experience of mankind, there is a natural and rational evidentiary relation between the fact proved and the one presumed; if the defendant has more convenient access to evidence relating to the fact to be presumed; and if, by requiring defendant to go forward with evidence to rebut the presumption, he is not thereby being subjected to unfairness or hardship.

4. K.S.A.1971 Supp. 21-3707(2) which provides that the state may establish a prima facie case of intent to defraud and of knowledge of the defendant that he lacked sufficient funds in the depository for payment of the check on presentation, by showing that the defendant drew the check, that the drawee refused to pay the check upon presentation because of insufficient funds and that the drawer failed to make payment within seven days after notice of non-payment, is a constitutionally permissible statutory presumption.

5. K.S.A.1971 Supp. 21-3707 is not in violation of the Fourteenth Amendment to the United States Constitution on the grounds that it is a denial of due process of law or equal protection of the law nor does that statute violate Section 16 of the Bill of Rights of the Kansas Constitution which prohibits imprisonment for debt.

Dwight J. Parscale, Asst. Atty. Gen., argued the cause, and Vern Miller, Atty. Gen., and Patrick L. Connolly, Asst. Atty. Gen., were with him on the brief for appellant.

Robert A. Bloomer, Osborne, argued the cause, and Lloyd C. Bloomer, Osborne, was with him on the brief for appellee.

PRAGER, Justice:

This is an appeal by the state in a criminal action. The appellee-defendant, Robert A. Haremza, was charged in the information with two counts of giving a worthless check in the amount of $50 or more as provided by K.S.A. 1971 Supp. 21-3707. The defendant filed his motion to dismiss the information on the grounds that the statute K.S.A. 1971 Supp. 21-3707 is in violation of the United States and Kansas Constitutions. The district court sustained the motion to dismiss on the grounds that the Kansas worthless check law, 21-3707, is 'void and unenforceable as a deprivation under the law.' From the order of dismissal the state has appealed to this court.

The issue presented to the court on this appeal is purely a question of law-the constitutionality of K.S.A. 1971 Supp. 21-3707. The defendant, Haremza, attacks the constitutionality of the statute on three theories: (1) The statute creates a prima facie case against the defendant contrary to the due process clause of the Fourteenth Amendment to the United States Constitution; (2) the statute denies equal protection of the law; and (3) the statute is a collection statute and violates the Kansas Bill of Rights, Section 16, which prohibits imprisonment for debt. Before considering each one of these contentions we should examine carefully the statute in question. K.S.A. 1971 Supp. 21-3707 provides as follows:

'21-3707. Giving a worthless check. (1) Giving a worthless check is the making, drawing, issuing or delivering or causing or directing the making, drawing, issuing or delivering of any check, order or draft on any bank or depository for the payment of money or its equivalent with intent to defraud and knowing, at the time of the making, drawing, issuing or delivering of such check, order or draft as aforesaid, that the maker or drawer has no deposit in or credits with such bank or depository or has not sufficient funds in, or credits with, such bank or depository for the payment of such check, order or draft in full upon its presentation.

'(2) In any prosecution against the maker or drawer of a check, order or draft payment of which has been refused by the drawee on account of insufficient funds, the making, drawing, issuing or delivering of such check shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or on deposit with, such bank or depository, providing such maker or drawer shall not have paid the holder thereof the amount due thereon and a service charge not exceeding three dollars ($3) for each check, within seven (7) days after notice has been given to him that such check, draft, or order has not been paid by the drawee. The word 'notice,' as used herein, shall be construed to include notice to the person entitled thereto given orally as well as notice given to such person in writing. Notice in writing shall be presumed to have been given when deposited as restricted matter in the United States mail, addressed to the person to be charged with notice at his address as it appears on such check, draft or order.

'(3) It shall be a defense to a prosecution under this section that the check, draft or order upon which such prosecution is based:

'(a) Was post-dated, or

'(b) Was given to a payee who had knowledge or had been informed, when he accepted such check, draft or order, that the maker did not have sufficient funds in the hands of the drawee to pay such check, draft or order upon presentation.

'(4) Giving a worthless check is a class E felony if the check, draft or order is drawn for fifty dollars ($50) or more. Giving a worthless check is a class A misdemeanor if the check, draft or order is drawn for less than fifty dollars ($50).'

We shall first consider the contention of the defendant that section (2) of 21-3707 is unconstitutional because of 'the prima facie evidence' provision. Under section (1) of the statute the intent to defraud and knowledge at the time of the drawing of the check that the drawer has insufficient funds on deposit for the payment of the check in full upon its presentation are required elements of the crime. Section (2) in substance provides that where the state proves (1) that the defendant made or drew a check, (2) that payment for such check was refused by the bank because of insufficient funds, and (3) that the defendant failed to pay the amount due on the check within seven days after notice has been given to him that the check has not been paid by the bank, then proof of such facts shall be prima facie evidence that the defendant had an intent to defraud and had knowledge that he did not have sufficient funds on deposit for payment of the check. The defendant contends here and the trial court below held that the prima facie evidence provision is a violation of due process of law becaue it destroys the presumption of innocence and places upon the defendant the burden of proving his innocence and therefore denies him due process of law. What is involved here is simply a statutory presumption that proof of one fact shall constitute presumptive or prima facie evidence of another one. This statutory presumption is a rule of evidence to be applied only in the trial of cases involving worthless checks. In his brief counsel for the defendant concedes that the legislature may create a statutory presumption. (State v. Sheppard, 64 Kan. 451, 67 P. 870.) Statutory presumptions are ordinarily rebuttable. A rebuttable statutory presumption governs only the burden of going forward with the evidence and, even when it operates against the defendant, it does not alter the ultimate burden of proof resting upon the prosecution, nor deprive the defendant of the benefit of the presumption of innocence. Statutory presumptions have been attacked in practically every jurisdiction in criminal proceedings on the grounds that they constitute a deprivation of due process of law.

The general rule universally applied throughout the United States is that a statutory presumption will be upheld as constitutional if, in accordance with the experience of mankind, there is a natural and rational evidentiary relation between the fact proved and the one presumed; if the defendant has more convenient access to evidence relating to the fact to be presumed; and if, by requiring defendant to go forward with evidence to rebut the presumption, he is not thereby being subjected to unfairness or hardship. (Torcia, Wharton's Criminal Evidence, 13th Ed., Vol. 1, § 94.) This court recognized and followed the rule in State v. Nossaman, 107 Kan. 715, 193 P. 347, where the following language is used in the opinion:

. . . It is competent for the Legislature to make proof of one fact prima facie evidence of another fact essential to the guilt of the accused, where the fact presumed has a fair relation to or some natural connection with the fact to be proven. (The State v. Sheppard, 64 Kan. 451, 67 P. 870; 12 C.J. 1205.) The term prima facie evidence carries the inference that such evidence may be rebutted and overcome, and notwithstanding the rule, an accused has the opportunity to submit his evidence and make a full defense. The verdict must rest upon all the evidence which must establish his guilt beyond a reasonable doubt. . . .' (p. 721, 193 P. p. 350.)

Comprehensive annotations on this subject may be found in 162 A.L.R. 495, 13 L.Ed.2d 1138, and in 23 L.Ed.2d 812. Numerous examples of statutory presumptions applicable in criminal cases which have been substained as constitutional are set forth in Torcia, Wharton's Criminal Evidence, 13th Ed., Vol. 1, § 94, pp. 156 through 159. The rule has been applied by the United States...