State v. McKay

• Decision Date: 31 January 1969
• Docket Number: No. 245,245
• Citation: 450 P.2d 435,1969 NMCA 9,79 N.M. 797
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. George R. McKAY, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 435

450 P.2d 435

79 N.M. 797

STATE of New Mexico, Plaintiff-Appellee, v. George R. McKAY, Defendant-Appellant.

No. 245.

Court of Appeals of New Mexico.

Jan. 31, 1969.

[79 NM 797] Walter F. Wolf, Jr., Schuelke & Wolf, Gallup, for defendant-appellant.

Boston E. Witt, Atty. Gen., Larry N. Smith, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

OMAN, Judge.

Defendant appeals from a judgment of conviction of four separate offenses. His sentences for these offenses are running concurrently.

His first point is that the trial court erred in denying his motion for a directed verdict on a charge of fraud. He contends that the State failed to prove fraud as required by § 40A--16--6, N.M.S.A.1953 under which he was charged and convicted. This statute provides in part:

'Fraud consists of the intentional misappropriation or taking of anything of value which belongs to another by means of fraudulent conduct, practices or representations.'

In ruling on a defense motion for a directed verdict, the evidence must be viewed in the light most favorable to the State. State v. Sanchez, 78 N.M. 284, 430 P.2d 781 (Ct.App.1967). The question presented by such a motion is whether there is substantial evidence to support the charge. In deciding this question on appeal, we view the evidence in the light most favorable to the State, resolving all conflicts therein and indulging all reasonable inferences therefrom in favor of the verdict of conviction. State v. Hinojos, 78 N.M. 32, 427 P.2d 683 (Ct.App.1967).

Defendant relies upon the case of State v. Jones, 73 N.M. 459, 389 P.2d 398 (1964), which involved a conviction for obtaining money under false pretenses, and he particularly relies upon the following language in that case:

'* * * Likewise, it must be established that the victim relied on the false representation and surrendered her money to appellant on the strength of the false representation. Perry v. Superior Court of Los Angeles County, 57 Cal.2d 276, 19 Cal.Rptr. 1, 368 P.2d 529; * * *. Appellant asserts there is no testimony that the prosecuting witness relied upon the statement; however, in Perry v. Superior Court of Los Angeles County, supra, it is said:

'* * * 'the express testimony of a victim of false pretense that he was induced to part with his money by the fraudulent statements of the accused is not essential. It is sufficient if the inference of his reliance could have been drawn from all the evidence. * * *"

Defendant contends that in the present case the State failed to show reliance by the victim upon any 'fraudulent conduct, practices or representations' on his part because:

(1) In purchasing a new automobile from the victim motor company, he gave the victim's sales manager a check in the amount of $3,683.00 to cover the balance of the purchase price of the vehicle. This check was drawn on a Gallup, New Mexico bank, and defendant told the sales manager that he did not at that time have sufficient funds in the bank to cover the check.

(2) Later during the same day he said to the sales manager: 'Well, if you want to, you can just go ahead and keep the car until the check is good.'

However, the evidence also shows that defendant checked into the Ramada Inn at Gallup on March 31, 1967; he told the manager of the Inn he was having automobile trouble; he later told the manager of the Inn that his wife and little girl had been killed in an automobile accident in Kansas and that 'he had received a very nice settlement from that accident.' The manager of the Inn introduced him to the sales manager of the victim motor company on April 1, 1967, stating that defendant might be interested in purchasing a new automobile; defendant met with the sales manager on three or four occasions, and on April 4, 1967, he told the sales manager he had decided on a particular automobile; he stated that he had money in a bank in Hutchinson, Kansas, and that he was drawing the check for $3,683.00 on funds that were then in the process of being transferred from the bank in Hutchinson to the bank in Gallup; he showed the sales manager a paper described as a 'collection receipt,' or 'collection slip,' in an amount in excess of $6,000.00, from the Gallup bank directed to the Hutchinson bank; the check was delivered to the sales manager and the automobile was delivered to defendant; later in the day, when the sales manager called on defendant to get his signature to a bill of sale on the trade-in vehicle, a conversation took place between them in which defendant did make the statement above quoted about the motor company keeping the automobile until the check cleared; in this conversation the sales manager told defendant he did not feel it necessary to hold the automobile, since defendant was staying at the Ramada Inn, and that he would see defendant in the morning; on the morning of April 5, 1967, defendant cashed a check for $35.00 at the Inn and then disappeared without checking out; later that morning the Gallup bank called the motor company and advised that the bank had learned defendant had no funds whatsoever in the Hutchinson bank; the motor company then proceeded to locate defendant; and he was later located in Tucumcari, New Mexico.

It is our opinion that this evidence substantially supports a finding that defendant did obtain the automobile by means of 'fraudulent conduct, practices or representations,' which were relied upon by the motor company.

Defendant's second point is that the trial court erred in denying his motion for a directed verdict on the charge of issuing a worthless check in the amount of $75.00 in violation of § 40--49--4, N.M.S.A.1953. This section of our statutes is a part of our 'Worthless Check Act,' and provides:

'It is unlawful for a person to issue in exchange for anything of value, with intent to defraud, any check, draft or order for payment of money upon any bank or other depository, knowing at the time of the issuing that the offender has insufficient funds in or credit with the bank or depository for the payment of such check, draft or order in full upon its presentation.'

Defendant relies upon the exception stated in § 40--49--6(A) which provides:

'The Worthless Check Act (40--49--1 to 40--49--9) does not apply to:

'A. Any check where the payee or holder knows or has been expressly notified prior to the drawing of the check or has reason to believe that the drawer did not have on deposit or to his credit with the drawee sufficient funds to insure payment on its presentation; * * *'.

This particular check was issued to and cashed by Ramada Inn on April 4. It was drawn on the same Gallup bank to which reference is herein made. The employee of the Inn, who received the check from defendant and gave him the cash therefor, testified on cross-examination: (1) defendant showed her a piece of paper indicating he did have money in the Gallup bank; (2) at the time she cashed the check she knew defendant had no money in...