Minich v. State , 77 Ga. App. 157 ( 1948 )

On the trial of one charged with the offense of cheating and swindling by making, drawing, uttering or delivering, with intent to defraud, a check for the payment of money upon a bank, knowing at the time of such making, drawing, uttering or delivering that the maker or the drawer has not sufficient funds in or credit with such bank for the payment of such check upon its presentation, evidence that the accused, at or about the same time, made, drew, uttered or delivered many similar checks for the purpose of obtaining goods without sufficient funds in the bank for the payment of such checks is admissible as tending to show a fraudulent intent and scheme on the part of the accused to obtain the property of others without paying for the same, and as warranting an inference that the transactions in the case on trial were made in pursuance of the same general purpose.

The evidence authorized the trial judge, sitting without the intervention of a jury, to find the defendant guilty as charged in counts one and two of the accusation.

DECIDED MAY 22, 1948. The defendant, R. N. Minich, was accused under three counts of unlawfully, with intent to defraud, making, drawing, uttering or delivering for present consideration certain checks and drafts drawn on the Savannah Bank Trust Company, knowing at the time that he did not have sufficient funds in or credit with such bank for the payment of said checks and drafts upon presentation; the first count being based on a check given to M. C. Fain Jr., on March 19, 1947; the second, on a check given to Bill Wood on March 26, 1947; and the third, on a check given to J. H. Bradley on March 26, 1947; each of such checks being given in payment of the purchase-price of an automobile, and each, upon its presentation to the bank, was refused payment for insufficient funds. Minich was tried by the judge, without the intervention of a jury, and was convicted on the first two counts, but was acquitted on the third. Following his conviction, he made a motion for a new trial, which was overruled, and to this judgment he now excepts and brings his case to this court.

Mr. M. C. Fain Jr., testified: "I was in Macon on or about the 19th day of March of this year [1947]. I was buying and selling automobiles at that time, at the Macon Auto Auction Sales, Yarborough-Brown Motor Company. I sold an automobile that day, and the Southeastern Motors of Georgia was the highest bidder for the car. I took a check in exchange for that car. That is the check I took. The check was signed by Richard Minich and John A. Taylor [for $1,800.00]. I ran this check through the bank, but did not get my money on it. It was returned ``Insufficient Funds.' I attempted to get in touch with Mr. Minich. The check was a week in clearing the banks, and I saw Mr. Minich the following Monday morning after that week in March. I saw him in Savannah at his place of business. I at first contacted Mr. Minich by telephone and by wire. He had promised to wire me the money each day for about three days. Then when I saw him, he said he would have the money in the next couple of days, and he gave me two checks then signed by himself; one for a thousand dollars and one for eight hundred dollars that was to have been good, one on Monday and one on Thursday. They were sent through the bank and came back marked ``No account.' Mr. Minich gave me those checks. . . I stated that sale was made here in Bibb County, Georgia. I sold my car to Southeastern Motors of Georgia. The Southeastern Motors of Georgia at that time was Richard Minich and John A. Taylor. I had my dealings with J. A. Taylor. At that time I did not know Mr. Minich. I never knew Mr. Minich at all until later on when I saw him in Savannah. He had nothing whatever to do with the actual transaction — the sale and purchase of this automobile. . . Mr. Minich never denied being the owner of the Southeastern Motors of Georgia. He didn't help me realize the money on this check Taylor had passed to me. I don't know whether he undertook to do that or not. At the time he gave me these two checks that I mentioned just now at my place of business in Donalsonville. I was to use those checks, one on the following Monday and one on the following Thursday. He made it known to me at that particular time that he didn't have the money in the bank at the time he was giving them to me to pay them. He promised me the money would be there. I never have received my money for them. . . I have no information as to when and where Mr. Minich signed this check [the first one]. . . I don't know of my own knowledge whether Mr. Minich ever instructed Taylor to use this check for the purpose it was used. Mr. Minich, none of the times I saw him, ever denied that Mr. Taylor had the authority to purchase the car for him. He told me that he did have the authority."

In substantiation of count two of the accusation Mr. Bill Wood testified: "My home is in Cordele, Georgia. . . I sold one car to Mr. Minich and Mr. Taylor, and received in payment for that car a check for $2,100. I delivered the car. This is the check which I took. That check is signed by Mr. Minich and Mr. J. A. Taylor, drawn on the Savannah Bank and Trust Company. I ran that check through the bank twice. It was returned marked ``Insufficient Funds.' On Friday [after the sale of the car on Wednesday] I was in an airplane accident and got my back broken, . . but Mr. Ewing, who worked with me, went over to see him. I never talked to Mr. Minich myself. I wrote him a letter and also wrote Mr. Taylor, but neither one of them answered my letter. I have not received any money on my check. Mr. Taylor gave me the check for that car which was sold here in the auction yard at Macon. I didn't know Mr. Minich at the time of the transaction. Mr. Taylor told me he was his partner. I don't know where Mr. Minich was at the time he signed this check, only what Mr. Taylor told me. I saw Mr. Taylor sign it. I sold the car to Mr. Taylor, delivered the car to him, and took the check from him. He wanted a bill of sale for it, and I told him I wouldn't give him a bill of sale until that check cleared."

Mr. E. C. Ewing testified: "My business in going to Savannah was to get the money for a check for Mr. Bill Wood. . . I saw Mr. Minich, but I didn't see him the first time. I couldn't locate him. They told me that he and Mr. Taylor were out in town. I saw Mr. Minich on my second trip to Savannah; he was in jail then. Mr. Minich did not deny that he had given the check. He told me as soon as he could get out he would make arrangements to take up the check, but he said where he was, he wasn't in any position to take up the check there. When I talked to Mr. Minich, he never denied or had anything to say as to whether Mr. Taylor had authority to buy cars. All he told me is that where he was he couldn't do anything about it now. He told me as soon as he got out he would make arrangements to take up the checks. He didn't deny Mr. Taylor had authority to come here and buy cars; he didn't discuss that. [Mr. Taylor was present.]"

Mr. J. G. Bradley testified that on March 26, 1947, he sold a ``47 Kaiser and a ``42 Chevrolet to the Southeastern Motors of Georgia; that he accepted in payment for the cars a check drawn on the Savannah Bank and Trust Company in the amount of $2400, which check was signed by Mr. Minich and Mr. Taylor. He testified further as follows: "I put that check in the bank and it was returned, marked ``Insufficient Funds.' A portion of that check was made good. I saw Mr. Minich in his place of business on April 4, I believe it was. I was at the place of business before they opened up and waited around until the fellow opened up. I went in and introduced myself and it was Mr. Minich, who is sitting here at the table. The first question he asked me was: ``Are you another one of the fellows that is holding checks against me?' I told him I was. A short time later Mr. Taylor came in, and they said, ``We will get your money by ten o'clock.' So about eleven o'clock that morning they got up $1825, a certified check. Then they gave the remainder of $660, which included $25 expenses over there, on their account, Southeastern Motors. I did not collect that $660 check. This is the check here. Mr. Minich didn't give me that check. At the time Mr. Taylor gave me that check, he had already gone to a funeral. It was understood between Mr. Taylor and Mr. Minich that they would give me that check. That check was returned, ``Insufficient Funds.' I have not had any conversation with Mr. Minich since that time. At the time I went down to see Mr. Minich, he did not make any denial of the fact that Mr. Taylor had authority to give me the $2400 check."

His testimony further showed that at the suggestion of the solicitor he got out a warrant on this $2400 check and then made the trip to Savannah and saw Mr. Minich and Mr. Taylor as above stated; and that it was on this trip that they gave him the $1825 certified check and the $660 check, the latter of which was never paid.

Mr. E. P. Yarborough testified that he conducted the sales of automobiles at his place of business in Bibb County; that among the sales conducted there were the three sales in question in which the $1800 car of Fain, the $2100 car of Wood, and the two $2400 cars of Bradley were sold, all of which were bought by the Southeastern Motors Company and were paid for with checks signed by Taylor and Minich; that he had never seen Mr. Minich and had never had any conversation with him except by telephone; that he talked to Minich over the telephone when these "boys that had these checks that were returned to them began to call us;" that he attempted to reach Mr. Taylor by telephone and was told that he was out of town; that Mr. Minich called him back on the phone, possibly the next day he thought, and said to tell those boys to send those checks back and that they would be good; and that Mr. Minich never denied to him that Mr. Taylor had authority to give these checks. Question: "Did Mr. Minich tell you in the conversation he knew they were given for the purchase of automobiles from time to time?" Answer: "That particular point was not discussed. He told me what the checks were for; there was no denial of it." The testimony of Mr. Edward A. Perkins, Assistant Vice-President of the Savannah Bank and Trust Company, showed that the account of the Southeastern Motors of Georgia was opened in the bank by Minich and Taylor and the checks to be honored on such account were required to be signed by both Minich and Taylor; that some of the checks given for the original deposit when the account was opened "didn't go through and we [the bank] had to charge them back to our account, so from then on we had an exchange on any check not being drawn on our bank for deposit;" that the bank from then on received checks drawn on other banks for collection only and did not credit them to the account of the Southeastern Motors until they were paid — thus Minich and Taylor knew that they were not receiving credit on their drawing account with the bank merely because a check was left in the bank for deposit, but that they would only receive such credit if and when the check was paid by the drawee bank; that the account was so unsatisfactory that the witness [Perkins] on behalf of the bank, after so many checks began to be drawn in March without sufficient funds in the bank to cover them, told Minich and Taylor that the bank would have to close out their account if they [Minich and Taylor] did not improve their way of handling the account, and that on April 12, 1947, the account was closed out by sending them the bank's check for the balance left therein, $9.15; that during the month of March there were forty-eight charges against the Southeastern Motors' account for checks drawn on the account which had to be returned for insufficient funds; that this "would not necessarily mean it was forty-eight different checks," but "would mean the same check could have been presented two or three times during that time." Be that as it may, there were approximately forty-eight times during the single month of March when checks signed by Minich and Taylor were presented for payment and payment had to be refused for insufficient funds. The checks upon which the prosecution in counts one and two was based were signed, one on March 19, 1947, and the other on March 26, 1947; and these are the counts upon which the defendant was convicted. On March 19, 1947, the balance to the Southeastern Motors account was $88; on March 20, $79; 21, $56; 22, $19; 24, $12; 25, $3008; 26, $5706; 27, $7; 28, $1; 29, $832; 31, $76. There was one additional deposit of $350 after March 31, added to $76, and it dwindled down to $9.15 on April 11, when the bank closed the account. Mr. Perkins said, "At any time during March, several thousand dollars worth of checks could have cleared; they could have cleared provided they got in our hands ahead of some other checks. He had $3000 on March 25th and he had $5000 on March 26th. But he could not have paid these checks and the other checks that came in too. He had this amount of balance at the close of business: he had $5000 at the close of business on March 26th, but his balance immediately went down to $7 on March 27th by payment of these checks."

Code § 13-9933 provides: "Any person who, with intent to defraud, shall make, or draw, or utter, or deliver any check, draft or order for the payment of money upon any bank, or other depository, knowing at the time of such making, drawing, uttering or delivering that the maker or drawer has not sufficient funds in or credit with such bank, or other depository, for the payment of such check, draft or order upon its presentation, shall be guilty of a misdemeanor. The making, drawing, uttering, or delivering of such check, draft, or order as aforesaid shall be prima facie evidence of intent to defraud. The word ``credit' as used herein shall be construed to mean an arrangement or understanding with the bank or depository for the payment of such check, draft or order."

The State, by proving that Minich gave Taylor authority to deliver checks signed by him to any seller (which would include the sellers here in question) as consideration for cars purchased jointly for himself and Taylor and that, when such checks were presented for payment, the bank refused payment for insufficient funds, made out a prima facie case of intent to defraud against Minich under Code § 13-9933, above cited, and if nothing else had appeared, the judge sitting without the intervention of a jury would be authorized to find the defendant guilty. It is true that the defendant made a statement denying his guilt; but under our law, the judge, so sitting, has an unlimited discretion to accept the whole of the statement or to reject it in part or in its entirety; and if he rejected it in its entirety, he could base his judgment upon the evidence which made out a prima facie case for the State. Jones v. State, 71 Ga. App. 56, 57 (30 S.E.2d, 284).

However, in this case such prima facie evidence was supported by other circumstances which we think at least import a thoughtless disregard of consequences or a heedless indifference to the rights of others to whom it was intended that these checks should be delivered for the purpose of purchasing automobiles in the business of Minich and Taylor. The slightest reasonable foresight would have revealed that any of the checks so given were likely to be turned down and result in injury or loss to the payees, who in the instant case were the sellers of the automobiles. In addition to the checks set out in counts one and two of the accusation on which Minich was found guilty, another bad check given on March 26 was duly presented for payment and was likewise turned down on account of insufficient funds; and in the month of March forty-eight checks were refused payment for the same reason. Minich, nevertheless, continued, by leaving in Taylor's hands old checks signed in blank or by signing new ones in blank, to authorize Taylor to use such checks, which were being continually turned down, for the purchase of the property of others; and he continued to do so until April 12, 1947, when the bank closed out the Southeastern Motors' account by sending him a check for $9.15, which was the remaining balance in the account.

In the instant case other bad-check transactions introduced in evidence tended to show the intent of both Minich and Taylor to defraud in that the transactions were so connected in time and so similar in their other relations, that the same motive may be reasonably imputed to all of the transactions; and when it is shown that the defendant did similar acts about the same time to others, by means of which acts he obtained goods on bad checks, the prima facie case that he intended to cheat and swindle is greatly strengthened. In many cases of fraud, it would otherwise be impossible satisfactorily to establish the true nature and character of the act. Farmer v. State, 100 Ga. 41 (28 S.E. 26). The evidence amply supported the judgment of the trial judge, sitting without the intervention of a jury, in finding Minich guilty as charged in counts one and two of the accusation.

Judgment affirmed. Gardner and Townsend, JJ., concur.