STATE v SKINNER
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No. 12455 I N THE SUPREME COURT O THE STATE O M N A A F F OTN 1973 - -- STATE OF MONTANA, P l a i n t i f f and Respondent, DELORES F. SKINNER, Defendant and A p p e l l a n t , Appeal from: District Court of t h e F i r s t J u d i c i a l D i s t r i c t , Honorable Gordon R. B e n n e t t , Judge p r e s i d i n g . Counsel o f Record : For A p p e l l a n t : William Dee Morris a r g u e d , Helena, Montana For Respondent : Hon. Robert L. Woodahl, A t t o r n e y G e n e r a l , Helena, Montana J. C. W e i n g a r t n e r , A s s i s t a n t A t t o r n e y G e n e r a l , a p p e a r e d , Helena, Montana Thomas Dowling , County A t t o r n e y , Helena, Montana L e i f B. E r i c k s o n , Deputy County A t t o r n e y , a r g u e d , Helena, Montana Submitted: Decided : : OCT 2 5 k 3 ~ September 11, 1973 ~ C 25 T &n Hon. Robert Boyd, D i s t r i c t Judge, s i t t i n g i n place of J u s t i c e Gene B , Daly, d e l i v e r e d t h e Opinion of t h e Court. Defendant Delores F. Skinner appeals from a judgment entered i n t h e d i s t r i c t c o u r t of t h e f i r s t j u d i c i a l d i s t r i c t , Lewis and Clark County, upon v e r d i c t s of g u i l t y on seven of n i n e counts of u t t e r i n g and d e l i v e r i n g fraudulent checks contained i n t h r e e sepa r a t e Informations f i l e d a g a i n s t h e r on March 1, 1972, June 2 1 , 1972, and August 24, 1972, and from d e n i a l of a motion f o r new t r i a l . Defendant, M r s . Skinner, moved from Eugene, Oregon t o Helena, Montana on January 18, 1972. Mrs. Skinner was divorced and had custody of t h e minor c h i l d r e n of t h e marriage. Mrs. Skinner con- tended t h a t d i f f i c u l i t i e s had a r i s e n with h e r ex-husband concerning v i s i t a t i o n r i g h t s with t h e c h i l d r e n , which h e r ex-husband denied, and she a l l e g e d M r . Skinner had prevailed upon h e r t o r e t u r n t o Montana t o simplify t h e matter of v i s i t a t i o n . Mrs. Skinner had requested her ex-husband t o advance h e r t h e sum of $1,000.00 upon t h e monthly c h i l d support payments t o permit h e r t o e s t a b l i s h residence i n Montana. Mr. Some d i s p u t e e x i s t s a s t o whether o r n o t Skinner d i d i n f a c t agree t o make such an advance, b u t i n any event no moneys were forthcoming o t h e r than t h e monthly support payments. On January 20, 1972 Mrs. Skinner opened a checking account a t t h e Union Bank and T r u s t Company of Helena and made an i n i t i a l d e p o s i t of $25.00. A t t h a t time she was given some temporary coded checks and ordered some checks with a personal imprint. Mrs. Skinner proceeded t o w r i t e checks on t h e account commencing on January 25, 1972, which r e s u l t e d i n t h e f i r s t Information being f i l e d . The f i r s t check was w r i t t e n t o a department s t o r e and t h e second and t h i r d were w r i t t e n t o a grocery s t o r e and merchandise was received by M r s . Skinner. Mrs. Skinner made no f u r t h e r d e p o s i t s t o t h e account o t h e r than t h e i n i t i a l $25.00 d e p o s i t and a s a r e s u l t t h e Union Bank and Trust Company caused t h e account t o be closed and made such a n o t a t i o n on t h e checks returned t h e r e a f t e r . In addition to the nine checks which constituted the subject matter of the three Informations, an additional fifty-seven checks were written by Mrs. Skinner during this period and were admitted into evidence as a single exhibit, plaintiff's Exhibit No. 12, over objections. Following the return of the nine checks listed in the Informations to the various business firms, each firm individually made efforts to collect the moneys and received various promises of payment. Subsequently, following the filing of the last Informa- tion, all of the checks which were the subject matter of the nine counts in the Informations, together with a substantial number of the remaining fifty-seven checks, were paid by Mrs. Skinner through her attorney. The checks involved in the third Information were all cashed at a drive-in restaurant in the neighborhood where Mrs. Skinner resided, It appeared that these checks were delivered to the drivein by one of Mrs. Skinner's children and with at least one of the checks a note was delivered to the drive-in asking that the check be held for a few days. The note itself was not in evidence but the existence of such a note was obviously believed by the jury which returned a verdict of not guilty to Count Two of that Information. Defendant raises seven issues on appeal: 1. Whether restitution constitutes a defense to the charge of uttering fraudulent checks. 2. Whether the five day notice provision contained in section 94-2702, R.C.M. 3. 1947, is an element of the crime. Whether the court erred in allowing evidence of other acts to be admitted. 4 Whether defendant was properly examined under cross. examination. 5. Whether the attorney-client privilege was abused. 6. Whether there was sufficient evidence to support the verdict . 7. Whether the sentence was harsh and oppressive. Section 94-2702, R.C.M. 1947, under which prosecution was brought, reads: "Uttering fraudulent checks or drafts--evidence. Any person who for himself or as the agent or representative of another or as an officer of a corporation, willfully, with intent to defraud shall make or draw or utter or deliver, or cause to be made, drawn, uttered or delivered, any check, draft or order for the payment of money upon any bank or depositary, or person, or firm, or corporation, knowing at the time of such making, drawing, uttering or delivery that the maker or drawer has no funds or insufficient funds in or credit with such bank or depositary, or person, or firm, or corporation, for the payment of such check, draft, or order in full upon its presentation, although no express representation is made with the reference thereto, shall upon conviction be punished as follows: If there are no funds in or credit with such bank or depositary, or person, or firm, or corporation, for the payment of any part of such check, draft, or order, upon presentation, then in that case the person convicted shall be punished by imprisonment in the state prison not exceeding five (5) years, or by a fine not exceeding five thousand dollars ($5,000.00) or by both such fine and imprisonment; if such check, draft or order be for a sum of twenty-five dollars ($25;0 ) or less, and there are some 0 but not sufficient P m d s in or credit with such bank, or depositary, or person, or firm, or corporation, for the payment of such check, draft or order in full, then in that case the person so convicted shall be punished by imprisonment in the county jail not exceeding six ( ) months, or by a fine not exceeding three hundred 6 dollars ($300.00) or by both such fine and imprisonment; if such check, draft or order be for a sum greater than twenty-five dollars ($25.00) and there are some but not sufficient funds in or credit with such bank, or depositary, or person, or firm, or corporation, for the payment of such check, draft or order in full upon its presentation, then in that case the person so convicted shall be punished by imprisonment in the state prison not exceeding five (5) years, or by a fine not exceeding five thousand dollars ($5,000.00) or by both such fine and im- Under Montana statutes the crime of uttering fraudulent checks is one of the crimes of larceny and the statutes effectively deal with the contention raised by defendant. Section 94-271.7, R.C.M. 1947, states in part: "* * * The fact that the defendant intended to restore the property taken is no ground of defense if it has not been restored before complaint, to a magistrate or court, c h a p g the commission of the offense, has been made. From the record it appears that prosecution of the first Information was commenced on March l, 1972. The initial portion of the restitution made by defendant was not made until June 2, 1972, and no restitution on any of the counts was made until after the been Informations had /filed in the district court. We note, in passing, that defendant had made promises of payment subsequent to the filing of the charges to various business establishments involved. Defendant contended that this constituted "credit" as defined in section 94-2702, R.C.M. 1947. The term "credit" referred to in that section is credit at the time of making, drawing, uttering or delivering the check. The statute does not refer to later arrangement for credit. In the instant case there is no evidence at all to indicate that defendant had "credit" with any of the payees on any of the checks upon which guilty verdicts were returned. Therefore, we hold that restitution subsequent to the filing of criminal complaint and subsequent promises to pay do not constitute a defense to the crime of uttering and delivering fraudulent checks. ~efendant'sprincipal contention and the one to which the greater portion of the briefs and argument by counsel for Mrs. Skinner is directed is the five day notice provision contained in section 94-2702, R.C.M. 1947, underlined heretofore. Defendant asserts that in the absence of any showing that the five day notice specified in the statute was given, there can be no conviction and the trial court erred in refusing to so instruct the jury. With this contention we disagree. A most casual reading of the statute indicates these essential elements of the crime of uttering and delivering a fraudulent check: (1) The intent to defraud, and (2) the knowledge of insufficient funds or no funds on deposit. The l e g i s l a t u r e recognized t h a t t h e s e two elements were d i f f i c u l t t o prove and hence a provision i n t h e s t a t u t e a s t o t h e means of proof.-- t h e f i v e day n o t i c e provision. Under t h i s provision t h e S t a t e can make a prima f a c i e case of i n t e n t t o defraud and knowledge of l a c k of funds by showing t h a t t h e drawer of t h e check had been given f i v e days n o t i c e t h a t t h e check had n o t been honored by t h e bank and had n o t made t h e check good w i t h i n t h e f i v e day period. To hold otherwise would be t o lend encouragement and give any would-be check w r i t e r a f i v e day head s t a r t on any p o s s i b l e prosecution. W e hold t h a t t h e underlined p o r t i o n of t h e s t a t u t e c o n s t i t u t e s a r u l e of evidence and i s n o t e s s e n t i a l t o t h e e s t a b l i s h ment of t h e crime. The next i s s u e r a i s e d concerns f i f t y - s e v e n NSF checks cons t i t u t i n g a s i n g l e e x h i b i t which was admitted i n t o evidence over strenuous and continued o b j e c t i o n on t h e p a r t of counsel f o r M r s . Skinner. I t i s defendant's contention t h a t t h e admission i n t o evidence of o t h e r crimes so prejudiced defendant t h a t she was deprived of a f a i r t r i a l . urged on t h i s Court. This i s a question which has been p e r i o d i c a l l y Recently i n S t a t e v. F r a t e s , - . Mont 9 503 P.2d 47, 29 St.Rep. 960, t h i s Court reviewed t h e a p p l i c a b l e r u l e and t h e exceptions t h e r e t o . The d i s t r i c t c o u r t , a s w e l l a s t h i s Court, i s o b l i g a t e d t o look very c a r e f u l l y a t t h e r e l a t i v e probative value of t h e evidence of o t h e r o f f e n s e s , represented by t h e f i f t y seven checks included i n Exhibit No. 1 2 , and weigh t h i s a g a i n s t t h e prejudice i n h e r e n t i n t h i s type of evidence i n l i g h t of t h e a c t u a l need t o introduce such evidence by t h e S t a t e . The checks involved i n Exhibit No. 12 were w r i t t e n from t h e period of January 25, 1972 through June 31, 1972, and during t h e time when Mrs. Skinner had twice been brought before t h e d i s t r i c t c o u r t t o be arraigned on t h e f i r s t two Informations. The i n d i v i d u a l checks contained i n t h e e x h i b i t tend t o e s t a b l i s h a common scheme, plan o r system s i m i l a r t o and c l o s e l y connected with and not t o o remote from t h e ones charged i n t h e Informations, tending t o prove t h e offenses charged. A similar fact situation existed in State v. Tully, 148 Mont. 166, 418 P.2d 549. The trial court based its decision to admit Exhibit No. 12 into evidence upon the authority of Tully and correctly so. ~efendant'snext issue on appeal contends she was prejudiced during the course of cross-examination by the State, attempting to further identify the checks contained in Exhibit No. 12, by requiring defendant on cross-examination to either continually seek refuge in the Fifth Amendment or run the risk of self-incrimination. However, having voluntarily assumed to testify in her own defense and the evidence having been properly admitted, the State on cross-examination asked and Mrs. Skinner answered: "Q. The checks that have been placed in state's Exhibit 12, did you write all of these checks? "A. Yes, I did, "Q. Every single one that is in there? "A. I assume so. "Q. Will you look at them?" At this point counsel for defendant requested leave to enter an objection outside the presence of the jury. Thereafter, in chambers, counsel objected on the grounds that to require defendant to testify concerning the individual checks contained in Exhibit No. 12 would violate her right against self-incrimination, Whereupon the court sustained the objection and the State abandoned any further inquiry concerning Plaintiff's Exhibit No. 12, We fail to see where defendant was subjected to any prejudice after having answered, without objection, that she had written all of the checks. During the course of cross-examination these questions were asked: Q . You stated in response to a question by your counsel that as far as you knew, all of the checks that you had written have been paid off, is that correct "A. To the best of my knowledge. "Q. Does that include checks that were contained in Exhibit No. 12?" To the latter question defendant's counsel interposed an objection based upon the ground of attorney-client privilege. It does not appear to the Court that the question posed in any way related to the attorney-client ,privilegeand the objection was correctly overruled. A careful review of the entire record on appeal reveals that there was ample evidence, including the testimony of defendant herself as to the commission of the offenses alleged, to sustain the verdicts. Defendant urges one further issue on appeal which has to do with the sentence pronounced. Defendant was found guilty of seven counts of uttering and delivering fraudulent checks. In its judg- ment the court ordered that she be imprisoned in the state prison for the term of two years on each of the seven counts with one year of each of said sentences suspended, the sentences to run consecutively. Under the statute defendant could have been sen- tenced up to five years on each count plus a fine. In State v. Karathanos, 158 Mont. 461, 468, 493 P.2d 326, this Court said: I1 It is the general rule that a sentence within the maximum authorized by statute is not cruel and unusual punishment. I I Finding no merit in any of defendant's contentions, the judgment and sentence of the district court is affirmed. istrict Judge, sitting for M r . Justice Daly. i /,' /chief Justice
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