State v. Lansman
| Decision Date | 17 November 1953 |
| Docket Number | No. 48338,48338 |
| Citation | 245 Iowa 102,60 N.W.2d 815 |
| Parties | STATE v. LANSMAN. |
| Court | Iowa Supreme Court |
L. W. Powers, Denison, for appellant.
Leo A. Hoegh, Atty. Gen., Raphael R. R. Dvorak, Asst. Atty. Gen., Des Moines, and Robert M. Underhill, Monona County Atty., Onawa, for appellee.
On November 5, 1952, the grand jury of Monona county returned an indictment against the defendant, charging that on October 16, 1952, he committed the crime of false drawing or uttering of a certain check in the sum of $140.40, given to the Art Jenson Locker, for which he secured things of value. The indictment alleged the defendant knowingly did not have an arrangement, understanding, or funds with the Ute State Bank, upon which the check was drawn, sufficient to pay or meet the same. The violation charged is of section 713.13 of the Code of 1950, I.C.A. Actually the false check statute is section 713.3 of the Code of 1950, I.C.A., but the error has not been challenged and we consider the case as though the proper section number had been used.
The defendant having pleaded not guilty the cause came on for trial on February 9, 1953. The sole witness in the case was Art M. Jenson, the complainant. He testified he was the proprietor of the Art Jenson Locker referred to in the indictment, located in the town of Moorhead. He was in the business of buying and selling eggs, dealing in produce, and operated a grocery store and meat locker. He had known the defendant about thirty years. Defendant was in the business of buying and selling chickens and eggs in Ute, a town about eleven miles from Moorhead. In the summer of 1952 the witness commenced selling eggs, which he had bought from farmers, to defendant. On October 16 he sold defendant several dozen eggs and defendant gave him the check which forms the basis of the indictment. The check was introduced in evidence. It was deposited in the bank at Moorhead for collection within a day or two. It came back through the Moorhead bank, unpaid, 'a week or ten days later.' The record does not show why the check was not paid at this time. Jenson called the defendant on the telephone and was told the check was then good and 'to send it up.' He put it through the same channels but it was again returned, this time with the notation 'account closed.'
On cross-examination this witness said he would recognize a copy of a depositor's statement from the Ute State Bank. Being shown a statement from this bank of the defendant's account for October 16, 1952, he said there was a balance in the account for that date of $388.22. He further testified that according to the bank statement defendant had a balance in the bank on October 15, 1952, of $1,663.25, and on October 17, 1952, of $575.65.
The State rested at the conclusion of Jenson's testimony, and defendant moved for a peremptory verdict by direction of the court. This was refused and defendant also rested. The jury was instructed, and after deliberation returned its verdict of guilty against the defendant.
I. The material part of Code section 713.3, I.C.A., with which we are dealing here, is this:
'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; * * *.'
Section 713.4 provides:
'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 essential elements of the crime are these: 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.
Many cases say the fraudulent intent is the gist of the crime. We have ourselves said: 'An essential element of the crime charged is fraudulent intent.' State v. Doudna, 226 Iowa 351, 357, 284 N.W. 113, 116; State v. McCutchan, 219 Iowa 1029, 1031, 259 N.W. 23. Whether the intent to defraud be the gist of the offense or merely one of the important elements is immaterial; it is certainly a necessary part of the state's case, to be proven as are all other requirements in a criminal action.
It will be noted here the state offered no evidence from the drawee bank as to the insufficiency of the funds, or lack of arrangement or understanding. It is aided, however, by section 713.4 which says a showing the check was refused by the drawee shall be material and competent evidence of such lack of arrangement or funds. When the state showed the check had been returned unpaid it had made a prima facie case on which it was entitled to have the jury's verdict. But it then developed by cross-examination of the state's witness that there had been sufficient funds in the defendant's account in the Ute State Bank to pay the check, not only on the day on which it was drawn but on the following day. This appeared from the bank's statement to the defendant, which we must assume was taken from and accurately reflected its records. Both parties argue the case on this assumption.
At the close of the state's case, therefor, the record showed the giving of the check for value, its return unpaid, the presumption or inference of fact to be drawn under section 713.4, and the attempted rebuttal of such presumption or inference by the information taken from the bank's statement. Our first and major inquiry is whether there was at this point anything to be submitted to the jury, or whether the defendant was entitled to a directed verdict. Substantially, was the 'material and competent evidence' provided for by section 713.4 overcome by a positive showing to the contrary? The serious question is whether there is any sufficient showing of intent to defraud for the jury to consider. Section 713.4, until the evidence which it makes available to the state is conclusively rebutted, also makes proper an inference of fraudulent intent. That is to say, when the state shows the nonpayment of the check by the drawee, the statute then says the same showing is evidence of insufficiency of the funds to meet it, and the lack of any arrangement to pay it; and we think there is then a proper inference of intent to defraud. Frand may arise from facts and circumstances, and an intent to defraud may properly be inferred from circumstances, words, and actions shown in evidence. Leach v. Arthur Savings Bank, 203 Iowa 1052, 1063, 213 N.W. 772.
But if the showing, whether it be labeled a presumption or an inference of fact, provided for the state by section 713.4 is conclusively rebutted, either by the state's own case or by the defendant, the evidence of fraudulent intent falls and there is nothing to submit to the jury. It could not be contended that in the absence of section 713.4 the state of Iowa had made a case here. There would be only a showing of the sale of the goods, the receipt of the check in payment, and its return from the bank unpaid. The reason why it was unpaid, whether because of insufficient funds, because other checks previously written arrived first and exhausted the account, or checks later written did the same, or the writer of the check hastened to the bank and withdrew his funds, or the bank applied the money on some indebtedness...
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...pretense, it is considered a crime of false pretense and comes within the definition of that term in the Blanket Bond. In State v. Lansman, 245 Iowa 102, 60 N.W.2d 815, the Iowa court set out the elements of the offense under Section 713.3. The court "The essential elements of the crime are......
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...person or corporation upon which the check or other instrument is drawn sufficient to meet or pay the same.' State v. Lansman (1953), 245 Iowa 102, 106, 60 N.W.2d 815, 817. Defendant claims there was not sufficient evidence of these elements to raise a question for the jury. We do not agree......
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