State v. Prettyman
| Decision Date | 15 March 1948 |
| Docket Number | 7055 |
| Citation | 191 P.2d 142,113 Utah 36 |
| Court | Utah Supreme Court |
| Parties | STATE v. PRETTYMAN |
Appeal from District Court, Third District, Salt Lake County Ray Van Cott, Jr., Judge.
Lee D Prettyman was convicted of drawing a check against insufficient funds with intent to defraud, and he appeals.
Affirmed.
McCullough, Wilkinson & Boyce, of Salt Lake City, for appellant.
Grover A. Giles, Atty. Gen., and Herbert F. Smart, Deputy Atty. Gen., and Brigham E. Roberts, Dist. Atty., of Salt Lake City, for respondent.
Appeal from a judgment of the Third District Court convicting defendant of the crime of drawing a check against insufficient funds, with intent to defraud, in violation of Sec. 103-18-11, U. C. A. 1943.
The facts in this case are largely without dispute. The uncontradicted evidence shows that on March 22, 1946, the defendant was registered at Covey's Tourist Court under the name of Leland Douglas, and that he had been so registered there for about a month prior thereto; that during the time he was registered there he had been a regular patron of the Covey Coffee Shop; that on the date above mentioned he executed and cashed at the coffee shop a check in the amount of $ 20.00 drawn on the Uintah State Bank at Vernal, Utah; that neither at that time nor at any previous time had the defendant had any account or credit arrangement of any kind with the drawee bank; that the check was dishonored on presentation; that the defendant remained at the Covey Tourist Court for about eight days after executing the above-mentioned draft, but that he left before the dishonored paper was returned to the coffee shop.
The chief question in this case is whether or not defendant had an intent to defraud at the time he uttered the check. The evidence introduced by the defendant tended to show that he was engaged in a business enterprise with a Mr. Raymond, the exact nature of which is not shown by the record, but the general nature of which was apparently investment in oil lands in and around Vernal, Utah; that Mr. Raymond had promised that sufficient money would be deposited at any bank which the defendant would designate by wire, and that he would honor any drafts within reason; that within 24 hours after issuing this check defendant sent a wire to Raymond in Seattle, Washington, with the expectation that Raymond would send to the drawee bank sufficient funds to meet the check; that Raymond never received the wire; that Raymond died thereafter, but when his wife learned of the situation she immediately sent funds to meet the draft, thus honoring her deceased husband's alleged agreement.
The assignment of error chiefly relied upon by defendant as grounds of reversal is that the court erred in denying defendant's motion to dismiss the action on the ground that the state's evidence was insufficient upon which to base a conviction.
while the evidence shows that at the time of the alleged offense Alvin B. McKean had no interest in the Covey Coffee Shop except as an employee, and that his brother, T. Rex McKean, and Kofoed were the partners doing business as Covey's Coffee Shop. Defendant contends that this amounts to a fatal variance or failure of proof.
As far as appears from the record, this point is raised for the first time in the case in this court. It is without merit. Sec. 105-21-18(3), U. C. A. 1943, provides as follows:
"An erroneous allegation as to the person injured or intended to be injured shall not be material."
The name of the person or persons injured constitutes no part of the crime. It is included in the information for the purpose of better describing and identifying the act with which defendant is charged. So long as the particular act is sufficiently described so as to enable the defendant to prepare his defense and to permit a plea of former jeopardy to be interposed in the event action is again brought, the information is sufficient and an error in name is not material. State v. McKee, 17 Utah 370, 53 P. 733; State v. Leek, 85 Utah 531, 39 P. 2d 1091. There has been no showing that defendant was prejudiced in the preparation of his defense, or that he is in danger of double jeopardy by reason of the mistake in name.
A more difficult question is raised by defendant's contention that there was no evidence of criminal intent. Section 103-18-11, U. C. A. 1943, which defendant was convicted of violating, insofar as material here, is as follows:
Defendant contends that the italicized portion of the above quoted statute creates a presumption, which disappears when rebutting evidence is adduced by the defendant, and therefore, since the state did not offer any rebutting evidence to the explanation offered by the defendant, there was no evidence of intent to defraud -- an essential element of the state's case. The portion of the statute here in question, seems never to have been construed by this court. However, a similar provision of our larceny statute, Sec. 103-36-1, U. C. A. 1943, has been considered by this court many times. That statute provides as follows:
(Italics added.)
In State v. Potello, 40 Utah 56, 119 P. 1023, 1028, defendant was convicted of the larceny of a horse. Mr. Justice Straup, who wrote the main opinion held that upon proof of the larceny, recent possession in the accused, and failure of the accused to make a satisfactory explanation, the state had made a prima facie case. The conviction was reversed on the ground that the state failed to prove a larceny, and that the evidence of defendant, though tending to show a larceny, showed that it was committed by someone else. In view of the court's holding that there was failure to prove one of the necessary elements necessary to bring the statutory provision of prima facie evidence of guilt into operation, any discussion of the effect or operation of the statute was probably mere dicta.
However, Mr. Justice Straup had this to say:
"Not that the jury, on such proven facts, though unrebutted or not discredited by circumstances, are required to convict if upon such proven facts they are not convinced beyond a reasonable doubt of the accused's guilt, but that they, upon such provenfacts, if unrebutted or not discredited by circumstances, may presume or infer the further fact of the felonious taking by the accused, and if, upon all the evidence adduced, they are convinced beyond a reasonable doubt of his guilt, may convict."
In the case of State v. Converse, 40 Utah 72, 119 P. 1030, 1033, a companion case to the Potello case, the court discussed more fully the application and operation of the statute. In that case, defendant was convicted of the larceny of some plumes from a store in Ogden. The evidence adduced by the state showed that the plumes were unlawfully taken from the store; that about a week later defendant sold some of the plumes to a Salt Lake merchant; that several days later defendant offered to sell more plumes to the same Salt Lake merchant, who, being aware that the plumes were stolen, notified the Salt Lake police who arrested defendant. Defendant told the officers that he had purchased the plumes from a hobo in Murray, who had them in a gunny sack. Defendant gave the officers false information as to his residence.
Defendant admitted that he was in Ogden on the week end when the plumes were stolen; that he had spent the week end there at the home of one Craig; that he had spent the entire time he was in Ogden with Craig; that he went from Ogden to Murray where he purchased the plumes from an "Asyrian or Portuguese looking" fellow who had the plumes in a gunny sack and was peddling them. Two other witnesses testified to having seen defendant purchase and pay for the plumes from an individual described as above.
In addition to the evidence above outlined, it was shown that defendant had told the Salt Lake merchant to whom he sold the plumes, that he had bought them for his girl but had a row with her and had decided to sell them. The state's rebuttal evidence showed that the train upon which defendant travelled to Ogden was on time, in contradiction to defendant's testimony that it was more than an hour late.
Defendant in that case, as the defendant in the case at bar, contended...
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