State v. Kulow

• Decision Date: 15 October 1963
• Docket Number: No. 50954,50954
• Citation: 255 Iowa 789,123 N.W.2d 872
• Parties: , 16 A.L.R.3d 1085 STATE of Iowa, Appellee, v. Merlyn KULOW, Appellant.
• Court: Iowa Supreme Court

Page 872

123 N.W.2d 872

255 Iowa 789, 16 A.L.R.3d 1085

STATE of Iowa, Appellee, v. Merlyn KULOW, Appellant.

No. 50954.

Supreme Court of Iowa.

Oct. 15, 1963.

Sheridan & Sheridan, Waukon, for appellant.

Even Hultman, Atty. Gen., State of Iowa, John H. Allen, Asst. Atty. Gen., State of Iowa, Joseph H. Samms, County Atty., Osage, and A. A. Beardmore, Asst. County Atty., Charles City, for appellee.

THOMPSON, Justice.

On May 31, 1961, five little pigs went to market. Thereby they put in motion the sequence of circumstances which brought about the present litigation. We are not told of, nor are we concerned with, the future history of the pigs; it is the check given in payment for them with which we are involved.

The defendant was at the time a resident of McIntire, and was engaged in the business of buying live stock, apparently under the name of McIntire Livestock Exchange. On the date set out, one Alvin Nolte took the five pigs to the Exchange, but found no one there. He left the pigs on the scalse. Within an hour thereafter his wife went to the Exchange and found the defendant's wife there and shortly the defendant appeared. He made out a check, dated 5-31-1961, payable to Alvin Nolte, in the sum of $180.07, and delivered it to Mrs. Nolte. Nolte deposited it in his bank at Adams, Minnesota, and in about two weeks it was returned unpaid. Thereafter the defendant was indicted by the Mitchell County grand jury, was tried and found guilty by the trial jury, and judgment was entered on the verdict and sentence imposed. From this judgment and sentence we have the present appeal.

The defendant assigns several errors which he contends were committed by the trial court, to his prejudice. We shall discuss those we find material, and further facts will be stated as they become important.

I. The indictment as returned by the grand jury charged the defendant with the crime of False Uttering of a Bank Check. On the day the case was reached for trial, the county attorney asked permission to amend by adding the words 'with fraudulent intent' and also 'in violation of the provisions of Section 713.3 of the 1958 Code of Iowa as amended.' Over the objection of the defendant this amendment was permitted, and this is the basis for the first assigned error.

It is the defendant's contention that the county attorney may not amend an indictment; that this can be done only by the grand jury which returned it. This argument lacks merit. Section 773.42 of the code, I.C.A. provides: 'The court may, on motion of the state, and before or during the trial, order the indictment so amended as to correct errors or omissions in matters of form or substance.' It is evident that the intent of the statute is that the prosecuting attorney may amend an indictment; it could hardly be contemplated that a trial would be adjourned while the grand jury was called into session to consider and return an amendment.

A further objection is that the indictment as returned did not charge a crime, and so the amendment had the effect of permitting a new indictment to be returned against the defendant when he was fully prepared for trial, and he should have at least have been granted a continuance instead of being compelled to proceed at once to trial under what he thinks was a new charge.

Again we find no prejudicial error. Code Section 773.3, (1), I.C.A. says: 'The indictment may charge, and is valid and sufficient if it charges, the offense for which the accused is being prosecuted in one or more of the following ways: 1. By using the name given to the offense by statute.' See also State v. Eichler, 248 Iowa 1267, 1275, 83 N.W.2d 576, 580, where we said: 'It (the information) stated the name given to the offense by statute. This would be sufficient even as to the primary charge.'

The original indictment here charged the offense by the name given by the statute. It was sufficient in itself, and the amendment did no more than add surplusage. No harm resulted to the defendant.

II. Next the defendant asserts he received nothing of value when he gave the check in question. This apparently rests on the thought that the pigs had been left at his place of business some time before he gave the check in question; so they were in his possession, he owed Nolte for them, and he did no more by the check than to make a payment to a creditor on an account. But we think it sufficiently appears that Nolte expected a cash payment for the hogs; he left them only because he found no one at the exchange, and his wife returned there within an hour to get the money for them. The pigs were left on the scales, where, presumably, they would be weighed in order to determine the price to be paid. There is no evidence whether Nolte would have taken the pigs away if payment had not been forthcoming, but we think there was a jury question whether the defendant did or did not receive something of value at the time he gave the check. The situation was such that it could well be found that title to the pigs did not pass until payment was made, and the parties so considered it.

III. By motion for directed verdict at the close of the state's case and at the close of all the evidence the defendant raised other questions, and now assigns error because of adverse rulings. No error can be predicated on the failure to grant the motion for peremptory verdict at the close of the plaintiff's evidence. The court may sustain such motion but is not required to do so. State v. McLaughlin, 250 Iowa 435, 439, 94 N.W.2d 303, 305. But the motion was renewed at the close of all the evidence, and so the point is not important here.

IV. Some contention is made that the necessary intent to defraud is not present in the instant case, because the defendant did, several months later, pay the amount of the check to Nolte. But the intent must be decided as of the date the check was delivered and the property received. Repentance, even restitution, some eight months later came too late, so far as the criminal law is concerned. The moving finger had written on May 31, 1961.

V. We turn then to the check itself, and the evidence whether the requirements of proof as to its presentation and non-payment at the drawee bank have been met. The defendant testified that before writing the check he called the Receville State Bank, the drawee, and received assurance that it would be honored. Two employees of the bank were called in rebuttal. Their testimony is that they did not remember such a call.

It was incumbent upon the state to prove a violation of the governing statute, Section 713.3, beyond a reasonable doubt. We quote the material part of the statute. '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, * * *.'

At this point the state relies on Section 713.4, which is also quoted. '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.' The difficult question is whether the state made sufficient proof of the presentation of the check to the drawee bank and that payment was there refused. The check, which was in evidence, does not have attached to it the usual printed slip, bearing the name of the drawee bank, with the Notation 'Returned Unpaid for Reason Indicated,' with a check mark before the words 'Insufficient Funds'. It does have on its face the stamped words 'Presented Twice June 9 '61' and under these the figures '75-1190'. This is evidently the number of the Farmers State Bank of Adams, in which it was first deposited. So the notation is that of the Adams bank. Passing the objection that the notation would be hearsay, it must be observed that there is lacking a showing as to where and to whom the check was presented. There is left only a possible inference that it was presented to the bank upon which it was drawn; but it is evident the Adams bank did not itself, by any of its personnel, present it to the drawee bank. Stamps on the back show the check was sent by the Adams bank to the Merchants National Bank of Cedar Rapids, and by it forwarded to the First...