Tolbert v. State
| Decision Date | 27 May 1968 |
| Docket Number | No. 5344,5344 |
| Citation | 244 Ark. 1067,428 S.W.2d 264 |
| Parties | Harvey Virgil TOLBERT, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
G. Leroy Blankenship, Walnut Ridge, for appellant.
Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen., Little Rock, for appellee.
Following a jury trial in the Poinsett County Circuit Court, on information filed by the prosecuting attorney, Harvey Virgil Tolbert was convicted of a violation of 'The Arkansas Hot Check Law' and was sentenced to five years in the state penitentiary. He has appealed to this court and relies upon the following points for reversal:
'The verdict was not supported by the evidence because the evidence did not establish intent to defraud.
The trial court committed reversible error in permitting the State to introduce five checks as a part of the testimony of Boyce Durham.'
The facts are as follows: The defendant had become acquainted with one R. V. 'Buck' Moore, a contractor living in Harrisburg, Arkansas. The defendant spent the night in Mr. Moore's home on October 1, 1966, and the following morning, being on Sunday, appellant advised Mr. Moore that he was short of cash and requested Mr. Moore to assist him in cashing a check. Mr. Moore went with the appellant to Main Highway Esso Service Station where the operator of the service station first refused to cash appellant's check, but when Mr. Moore agreed to 'stand good' for the payment of the check, the operator agreed to cash it.
The appellant made out a check for $75.00 on a printed check form with blank spaces provided for the name and address of the bank. The check form had printed on its face as follows: The appellant wrote 'Citizens Bank of Smithville, Arkansas,' into the spaces provided therefor; the check was made payable to Main Highway Esso Service Station, it was signed by the appellant and cashed by the operator of the service station. When the check was presented to the Citizens Bank of Smithville, appellant had no account in the bank and payment of the check was dishonored for that reason. Upon return of the check to the operator of the service station with the bank's notation 'No Acct.,' Mr. Moore was notified and he paid the operator of the service station as he had agreed to do.
Appellant was charged with, and convicted of, violation of Act 241 of the Acts of Arkansas for 1959, Ark.Stat.Ann. §§ 67--719--67--724 (Repl.1966). The pertinent portions of which are as follows:
'For convenience this Act (§§ 67--719--67--724) may be referred to and cited as 'The Arkansas Hot Check Law'.
It shall be unlawful for any person to procure any article or thing of value, or to secure possession of any personal property to which a lien has attached, or to make payment of any pre-existing debt or other obligation of whatsoever form or nature, or for any other purpose to make or draw or utter or deliver, with intent to defraud, any check, draft or order, for the payment of money, upon any bank, person, firm or corporation knowing at the time of such making, drawing, uttering or delivering, that the maker, or drawer, has not sufficient funds in, or on deposit with, such bank, person, firm or corporation, for the payment of such check, draft or order, in full, and all other checks, drafts or orders upon such funds then outstanding.'
The penalty provision of the act, § 67--723, as it applies to this case, is as follows:
'For a violation of this Act, in the event the amount of the check, draft or order involved is Fifty Dollars ($50.00), or more, punishment shall be by confinement in the penitentiary for not more than ten (10) years, and by a fine not exceeding Ten Thousand Dollars ($10,000).'
Appellant offered no evidence at the trial and the first point he relies on for reversal is settled by § 67--722 of the statute, as follows:
The check for $75.00 upon which appellant was prosecuted and convicted was dated October 1, 1966. At the trial of the case, the state introduced, over appellant's objection, five additional checks ranging in amounts from $10.00 to $16.25, and dated from October 10, 1966, to October 12, 1966, drawn by appellant on the Citizens Bank of Smithville, Arkansas, and dishonored for payment by the bank because the appellant had no account in the bank. The original information under which appellant was charged also contained counts in connection with these checks, but because the charges on these checks constituted misdemeanors under the statute, they were dismissed from the information on motion of the trial court with direction that they be prosecuted under proper misdemeanor charges in municipal or justice of the peace courts.
These five checks were introduced at the trial, over the objections of the appellant, and the cashier of the bank was permitted to testify thereon for the purpose of showing 'the mode, or method, or scheme of operation of the defendant, the motive and his guilty knowledge and intent.' The checks were received in evidence for that limited purpose and the trial court so instructed the jury as follows:
'The Court has admitted testimony of other offenses similar to the one charged in the Information. You will not be permitted to convict the defendant upon such testimony. Evidence of another similar offense, if you believe another has been proven, is admitted solely for the purpose of showing motive, design and particular criminal intent, habits and practices, guilty knowledge, good or bad faith, and you should consider such evidence for this purpose and for this purpose alone and it shall not be considered in fixing any punishment that might be imposed.
The defendant is not on trial for any offense except the alleged offense of the...
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