State v. Mason

• Decision Date: 20 December 1972
• Docket Number: No. 55537,55537
• Citation: 203 N.W.2d 292
• Parties: STATE of Iowa, Appellee, v. Claire Wesley MASON, Sr., Appellant.
• Court: Iowa Supreme Court

Page 292

203 N.W.2d 292

STATE of Iowa, Appellee, v. Claire Wesley MASON, Sr., Appellant.

No. 55537.

Supreme Court of Iowa.

Dec. 20, 1972.

Rehearing Denied, Jan. 10, 1973.

Frank M. Krohn, Newton, for appellant.

Richard C. Turner, Atty. Gen., Fred M. Haskins, Asst. Atty. Gen., and Dennis Chalupa, Newton, County Atty., for appellee.

Heard before MOORE, C.J., and LeGRAND, UHLENHOPP, REYNOLDSON and McCORMICK, JJ.

REYNOLDSON, Justice.

Defendant was tried, convicted and sentenced in Jasper district court for false uttering of check and for being an habitual criminal. We affirm.

December 18, 1971, defendant gave Axtell Ford of Newton, Iowa, a check for $750 in full payment for a 1964 Oldsmobile auto. He accepted delivery of the car and drove it away.

The check was drawn on Hayesville Savings Bank which promptly refused payment. The largest balance defendant had ever carried in the Hayesville bank was $105. For several years before this incident his dormant account had a credit of only $2.27.

I. Defendant asserts trial court erred in overruling his pretrial motion to dismiss based on a failure to indict within thirty days, in violation of § 795.1, The Code. No issue is raised relating to speedy trial. See § 795.2, The Code; and authorities cited in State v. Jennings, 195 N.W.2d 351, 354 (Iowa 1972).

Insofar as pertinent here, § 795.1 provides:

'795.1 Failure to indict. When a person is held to answer for a public offense, if an indictment be not found against him within thirty days, the court must order the prosecution to be dismissed, unless good cause to the contrary be shown.'

Although defendant was in fact incarcerated following January 3, 1972, the record discloses this was on an unrelated charge. The instant charge was first field March 20, 1972. Trial commenced filed March 20, 1972. Trial commenced April 10, 1972 and was completed April 11, 1972.

Obviously it was not the legislative intent to immunize a defendant held to answer for a public offense from all subsequent charges on unrelated offenses. Nor was it the intent of the legislature to grant an incarcerated defendant the benefit of a 30 day statute of limitations on offenses unconnected with the one for which he was restrained. A § 795.1 dismissal is not mandated where the public offense for which a defendant is held to answer is unrelated to the one on which the allegedly late indictment or information is subsequently filed. State v. Dillon, 258 Iowa 784, 139 N.W.2d 925 (1966); State v. Satterfield, 257 Iowa 1193, 136 N.W.2d 257 (1965); see State v. Cennon, 201 N.W.2d 715 (Iowa, filed Oct. 18, 1972).

Trial court did not err in overruling defendant's motion to dismiss.

II. Defendant further assigns error based on trial court's refusal to instruct the jury he could not be found guilty unless he was served with a notice of nonpayment of the check at least ten days before criminal charges were filed. This alleged error is grounded on the provisions of § 713.4, The Code:

'713.4 False drawing or uttering of checks. As against the maker or drawer of a check * * * payment of which is refused by the drawee because of insufficient funds * * * the fact that payment of such check * * * has been refused * * * shall be prima facie evidence of intent to defraud and of knowingly not having an arrangement, understanding, or funds with such bank * * * sufficient to meet or pay the check * * * 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 * * * has not been paid by the drawee.'

Defendant's ingenious rationale ignores the distinction between § 713.3, The Code, which defines the crime of false drawing or uttering of checks, and § 713.4, which merely articulates an evidentiary rule. See State v. Johnson, 196 N.W.2d 563 (Iowa 1972); State v. Kulow, 255 Iowa 789, 123 N.W.2d 872 (1963); cf. State v. Brady, 121 Iowa 561, 97 N.W. 62 (1903); 29 Am.Jur.2d, Evidence § 126, pp. 157--59. Failure to pay the check after a ten-day notice is not an element of this crime. In State v. Johnson, supra, 196 N.W.2d at 565, we recognized those elements as:

'(1) (I)ntent to defraud; (2) securing money, credit or other thing of value by means of a check * * *; and (3) knowingly not having any arrangement, understanding, or funds with the bank * * * upon which the check * * * is drawn sufficient to meet or pay the same.'

It follows the crime is committed when the check writer receives a thing of value, assuming all other elements are present. In State v. Kulow, supra, 255 Iowa at 793, 123 N.W.2d at 875 we said:

'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.'

Clearly, defendant could have been arrested on the date he wrote the check and obtained the car. The offense was then complete.

Although here defendant was served with a § 713.4 notice on March 29, 1972, the State did not rely on that notice nor did trial court instruct the jury on prima-facie evidence of intent and knowledge.

Defendant's position that every maker or drawer of a worthless check should be accorded ten days to make it good is untenable. He was not prejudiced by the State's election not to rely on § 713.4. This assignment of error is without merit.

III. Defendant next contends his motion for directed verdict should have been sustained because there was no showing he obtained anything of value. The proof failed, he argues, to show he ever obtained title to the Oldsmobile auto.

This case was tried below and presented here, by both parties, on the theory the State was required to show transfer of title. Without passing on that dubious premise, the evidence of transfer, partially related in the next division, was more than adequate to create a jury issue.

IV. A further error is assigned because trial court permitted the State to reopen (after it had initially rested its case) to introduce further evidence on the issue of the car title. At that point it had been twice testified (without objection) that defendant had received title to the car. After trial court sustained the motion to reopen, testimony was introduced that defendant was observed to have the title after the date of purchase. There was also received into evidence a certified instrument from the county treasurer's office showing transfer of title to defendant.

Both parties agree trial court...