State v. Johnson

• Decision Date: 13 April 1972
• Docket Number: No. 54926,54926
• Citation: State v. Johnson, 196 N.W.2d 563 (Iowa 1972)
• Parties: STATE of Iowa, Appellee, v. James A. JOHNSON, Appellant.
• Court: Iowa Supreme Court

Page 563

196 N.W.2d 563

STATE of Iowa, Appellee, v. James A. JOHNSON, Appellant.

No. 54926.

Supreme Court of Iowa.

April 13, 1972.

Charles A. Stream, Oskaloosa, for appellant.

Richard C. Turner, Atty. Gen., Robert Jacobson, Asst. Atty. Gen., and Hugh Faulkner, Oskaloosa, County Atty., for appellee.

MASON, Justice.

James A. Johnson was charged by county attorney's information with the crime of false drawing and uttering of a check for the amount of $20 in violation of section 713.3, The Code. A Mahaska county jury convicted him of the crime charged. Defendant's motions in arrest of judgment and for new trial were overruled and he was sentenced to the state penitentiary for not to exceed seven years.

Defendant appeals from this judgment assigning five errors relied on for reversal. In one division of his written brief he argues the court erred in overruling his motions for directed verdict made at the close of the State's evidence and renewed at the close of all evidence and in arrest of judgment. In another, defendant contends the court erred in overruling his motion for new trial inasmuch as an examination of the entire record discloses he did not have a fair and impartial trial. In the remaining division he contends the sentence imposed is excessive.

There is no dispute as to the factual background leading to the prosecution. June 27, 1970, Johnson gave James A. Garrett, operator of an Oskaloosa pool hall, his check for $20 drawn on a local bank in payment of his pool hall account of approximately $16 and the price of a bottle of beer. Johnson was given the difference in change. In completing execution of the check in Garrett's presence, defendant wrote the figure 72455 as his purported bank account number on the check and signed it as drawer. Garrett stamped his indorsement on the check and took it to the drawee bank the following day for deposit. The next morning the bank notified Garrett it did not have an account with defendant. Garrett picked up the check which the bank had stamped 'no account' and turned it over to the Oskaloosa police who filed charges against defendant.

I. As stated, the information is based on section 713.3 which provides in part:

'False drawing or uttering of checks. Any person who with fraudulent intent shall make, utter, draw, deliver, or give any check, draft, or written order upon any bank, person, or corporation and who secures money, credit, or thing of value therefor, and who knowingly shall not have an arrangement, understanding, or funds with such bank, person, or corporation sufficient to meet or pay the same, shall be guilty of a felony, if such check, draft, or written order shall be for the sum of twenty dollars or more, and shall on conviction thereof be punished as in section 713.1; * * *.'

Essential elements of an offense under this section are: (1) intent to defraud; (2) securing money, credit or other thing of value by means of a check, draft or written order; and (3) knowingly not having any arrangement, understanding, or funds with the bank, person or corporation upon which the check or other instrument is drawn sufficient to meet or pay the same. State v. Kimball, 176 N.W.2d 864, 865, (Iowa 1970); State v. Lansman, 245 Iowa 102, 106, 60 N.W.2d 815, 817.

Defendant's argument in his first division is based on the contention since the State offered no proof of intent to defraud other than that contemplated by section 713.4, The Code, 1966, any presumption which would arise from this section was effectively and conclusively rebutted; hence, there was nothing to submit to the jury.

II. Johnson's first contention his motion for a directed verdict made at the close of the State's evidence should have been sustained is without merit since error cannot be predicated on failure to grant a motion for directed verdict made at the close of the State's evidence. State v. McLaughlin, 250 Iowa 435, 439, 94 N.W.2d 303, 305; State v. Kulow, 255 Iowa 789, 793, 123 N.W.2d 872, 875; State v. Mabbitt, 257 Iowa 1063, 1065, 135 N.W.2d 525, 527; State v. Everett, 157 N.W.2d 144, 146, (Iowa 1968); State v. Werner, 181 N.W.2d 221, 222, (Iowa 1970); and State v. Smith, 195 N.W.2d 673 (Iowa, March 16, 1972).

III. In considering defendant's second and third assignments challenging sufficiency of evidence to sustain the verdict on which his conviction is based, the evidence is viewed in the light most favorable to the State and the court accepts as established all reasonable inferences tending to support action of the jury. It is necessary to consider only the supporting evidence whether contradicted or not.

In a criminal action the cause should be submitted to the jury and the court should not direct a verdict of acquittal if there is any substantial evidence reasonably tending to support the charge.

Either direct or circumstantial evidence, or both, on each and every essential element to conviction is sufficient to warrant a finding of guilty, if it satisfies triers of facts beyond a reasonable doubt. For this purpose circumstantial evidence may be equal in value to and sometimes more reliable than direct evidence. However, where circumstantial evidence alone is relied on as to any one or more of essential elements the circumstance or circumstances must be entirely consistent with defendant's guilt and wholly inconsistent with any rational hypothesis of defendant's innocence and so convincing as to exclude a reasonable doubt that defendant was guilty of the offense charged.

In support of the foregoing statements of law see State v. DeRaad, 164 N.W.2d 108, 109--110, (Iowa 1969); State v. Brown, 172 N.W.2d 152, 153--155, (Iowa 1969), and authorities cited in these opinions.

IV. In written brief and argument defendant sets out section 713.4, The Code, 1966, which he maintains the State relies on to generate a jury issue on the question of defendant's intent to defraud. This section as it appeared in the 1966 Code was in this language:

'Evidence of violation. The fact that payment of said check, draft, or written order when presented in the usual course of business shall be refused by the bank, person, or corporation upon which it is drawn, or that it be protested for nonpayment for lack of such arrangement, understanding, or funds with which to meet the same, shall be material and competent evidence of such lack of arrangement, understanding, or lack of funds.'

As pointed out, defendant argues any presumption arising from this section relevant to defendant's intent to defraud was conclusively rebutted.

However, this section was repealed by the First Session, Sixty-third General Assembly, chapter 302 and the following section, effective July 1, 1969, was enacted in lieu thereof:

'False drawing or uttering of checks. As against the maker or drawer of a check, draft, or written order, payment of which is refused by the drawee because of insufficient funds of the maker or drawer or because the maker or drawer has no account with the drawee, the fact that payment of such check, draft, or written order has been refused by the drawee shall be prima facie evidence of intent to defraud and of knowingly not having an arrangement, understanding, or funds with such bank, person or corporation sufficient to meet or pay the check, draft, or written order, Provided such maker or drawer shall not have paid the holder thereof the amount due thereon within ten days after receiving written notice by certified mail or notice in the manner of serving an original notice that such check, draft, or written order has not been paid by the drawee.' (emphasis supplied)

This statute now appears as section 713.4 of the Code 1971.

Nothing in the record before us or in the transcript filed could be claimed to serve as a basis for the contention the State relies on the section in effect June 27, 1970, as creating a presumption bearing on defendant's intent to defraud. In fact, there is no record of any attempt to comply with the proviso of the section. Neither the State in presenting its evidence or in argument before this court nor the trial court in ruling on objections or in instructions to the jury referred to this section either directly or indirectly.

The State offered testimony of Herbert Sauter, president of drawee bank, to the effect the drawee bank did not have any account numbers corresponding to the one placed on the check by defendant as all account numbers with the bank were in six digits with the highest commencing with a 'four.' The State also presented testimony through this witness that defendant never had an account in the drawee bank and had made no arrangement with Sauter or any one else associated with the bank to make the check good.

It is obvious Sauter's testimony was offered in connection with the State's burden to prove beyond a reasonable doubt defendant knowingly did not have any arrangement, understanding, or funds with the drawee bank sufficient to meet or pay the same--the third essential element of the offense charged. Defendant does not challenge this testimony.

Likewise, the State offered Garrett's testimony in connection with its burden of proving the second essential element of the offense mentioned in division I, supra. His testimony bearing on this element is undisputed. Evidence was also offered through this witness that Johnson placed a figure on the check as his purported bank account number before delivering it to the witness.

It cannot logically be argued the foregoing evidence was insufficient to generate a jury question on the two elements mentioned.

However, defendant's attack is directed against submission to the jury of the issue of his intent to defraud. On the record before us he was not faced with the necessity of rebutting any statutory presumption arising from section 713.4 of the Code, 1966, since, as pointed out, the State does not rely on any statutory presumption as an aid in sustaining its burden of proving defendant's intent to...