Walker v. State , 10 Ark. App. 189 ( 1983 )

James R. Cooper, Judge.

In this criminal case, the appellant was convicted by a jury of making and uttering a hot check and sentenced as an habitual offender to a term of three years in the Arkansas Department of Correction and a fine of $1,200.00. From that conviction, comes this appeal.

For reversal, the appellant contends the verdict of the jury was contrary to the law, inasmuch as Ark. Stat. Ann. § 67-720 requires intent to defraud as an element of the offense with which the appellant was charged and the appellant produced sufficient evidence to negate such intent. We disagree.

On July 19, 1982, the appellant, who was the owner of K-City Furniture Mart, purchased 12 china cabinets from Ruff and Parkhill Mfg. of Harrison. The appellant had been a regular customer of Ruff & Parkhill’s. He testified that at the time he purchased these cabinets and paid for them with a check drawn on the account of K-City Furniture Mart for $1,200.00, he informed Mr. David Ruff, a partner in Ruff & Parkhill, that he would take the cabinets to Texar-kana where he had a buyer and, upon selling the cabinets, return and deposit the funds from the sale into the account upon which the $1,200.00 check was drawn in order for there to be sufficient funds in his account for the check to clear. Mr. Ruff would neither confirm or deny the appellant’s claim that he stated that his account had insufficient funds in it at the time of the sale, but both Mr. Ruff and his partner, Mr. Parkhill, confirmed the appellant’s testimony that he told them he had a buyer in Texarkana. The appellant’s buyer in Texarkana refused to purchase the cabinets, but the appellant was able to sell the cabinets and he made a deposit into his account of $1,220.00. Despite this effort, there were insufficient funds in the appellant’s account to cover the check to Ruff & Parkhill allegedly due to the fact a check for $925.25 deposited by the appellant into his account was returned to the appellant because it was drawn on an account that had been closed, and this amount ($925.25) was debited against the appellant’s account. The appellant claimed to have made arrangements to pay the check off, and it was paid a few days before trial.

The appellant contends that the fact that he told Ruff & Parkhill that his check was no good and requested that they refrain from depositing his check until he could sell the cabinets and that he made arrangements to pay off the check negates any guilty intent that is required by Ark. Stat. Ann. § 67-720, which provides:

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 taxes, licenses or fees, 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 in-state or out-of-state bank, person, firm or corporation, knowing at the time of such making, drawing, or 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. [Acts 1959, No. 241, § 2, p. 1204; 1977, No. 155, § 1, p. 167; 1981, No. 899, § 1, p. 2112.]

According to Ark. Stat. Ann. § 67-722, a prima facie case of intent to defraud is made when a check is introduced into evidence with an endorsement showing it was unpaid because of insufficient funds. Rice v. State, 240 Ark. 674, 401 S.W.2d 562 (1966). That the check was so returned is uncontroverted. In order to rebut this inference, the accused must put on evidence which demonstrates the lack of intent to defraud. Id.

The appellant testified that Ruff and Parkhill knew his check was no good when he delivered it to them and that he made arrangements with David Ruff to hold the check until he returned from the sale of the cabinets and deposited the proceeds from this sale into his account. Mr. Ruff would not confirm that allegation and Mr. Parkhill denied it. The appellant testified that he was aware at the time the check was written that there were not sufficient funds in his account to cover the check. His acts and assertions tend to support his claim that he had no intent to defraud. Also, the evidence that a check deposited by him into his account was returned because the account upon which it was drawn was closed tends to support his version of the transaction. However, whether the appellant’s testimony was sufficient to overcome the state’s prima facie case was for the jury. Id. Since intent is a state of mind which must of necessity be inferred, Chaviers v. State, 267 Ark. 6, 588 S.W.2d 434 (1979), the real qustion is whether there was sufficient evidence introduced by the state so as to present a fact question for the jury. Clearly, there was. The conflicts in the testimony were for the jury to reconcile. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).

Although we recognize that the jury could easily have reached the opposite result, we cannot say that there is no substantial evidence to support the appellant’s conviction.

Affirmed.

Mayfield, C.J., agrees. Glaze, J., concurs.