Edens v. State

Sam Robinson, Associate Justice.

The appellant, Edens, was charged with the crime of “overdrafting” by executing and delivering to Raymond Recker a check in the sum of $11,000.00 with the felonious intent to defraud the said Recker, Edens not having sufficient money in the bank to pay the check. He was convicted of the charge, sentenced to six years in the penitentiary, and has appealed. It is important to keep in mind that appellant was not charged with obtaining money by false pretense in violation of Ark. Stats. 41-1901.

Recker is a successful businessman and has dealt in transactions amounting to hundreds of thousands of dollars. He claims that he cannot read or write, but that he can sign his name. His signature shows extraordinarily good penmanship. It is hard to understand how a person could write such a good hand and not be able to read or write anything except his name.

Recker has had many business transactions with Edens. They have been having business dealings with each other over a period of several years. In 1958 Recker borrowed $3,000.00 from Edens and has not repaid it. On January 15, 1960, Recker gave Edens two checks totaling $11,000.00; one for $4,000.00 and the other for $7,000.00. The money was to be used by Edens to purchase a piece of land for Recker. When the $7,000.00 check was presented to the bank by Edens, payment was refused because Recker did not have sufficient funds in the bank to cover the check. It is significant that Recker was not charged with overdrafting. Later, the check was returned to the bank and honored. Edens failed to purchase the real estate.

On May 20,1960, four months later, Recker called on Edens for payment of the $11,000.00 debt that Edens owed him. Edens issued and delivered his check to Recker for the $11,000.00, but because of insufficient funds, the check was not honored by the bank. As a result of giving that check, on October 31, 1960, Edens was charged .with overdrafting.

Subsequent to the giving of the first $11,000.00 check, Edens issued to Recker other $11,000.00 checks for the same purpose, but none of those checks were good. However, on June 24,1960, Edens gave Recker a check in the sum of $4,500.00 as part payment on the debt, and that check was honored and paid.

On October 25, 1960, Edens’ father gave Recker a check for $400.00 as payment of the interest on the debt owed by appellant. The check was not honored, but later the father paid the $400.00 in cash. Just six days after Edens ’ father paid the $400.00 interest on the debt, the felony information was filed charging Edens with overdrafting.

Ark. Stats. 67-720 makes it unlawful to give a bad check in payment of a debt with the intent to defraud. Ark. Stats, 67-722 provides that if the check is dishonored by the bank or drawee, such fact shall be prima facie evidence of the intent to defraud.

The effect of the statute providing that refusal of payment by the drawee of a check or draft is prima facie evidence of the intent to defraud is to cast upon the defendant the burden of going forward with the case. In the case at bar, the refusal of payment by the bank was prima facie evidence of the intent to defraud, but such evidence was not sufficient to take the case to the jury in the face of other evidence in the case. All of the evidence shows that Edens defrauded Recker of nothing by the issuance of the $11,000.00 check. There was no possibility of Edens defrauding Recker of anything by giving the check, and Edens could have had no intention of committing a fraud by giving the check. Prima facie evidence alone is not sufficient to support a verdict where it is contradicted by other evidence explaining the transaction.

In 20 Am. Jnr. 1102, it is said: “While a presumption may relieve a party of the duty of presenting evidence, a prima facie case made in favor of the plaintiff, by a presumption of law, does not need to be overcome by a preponderance of the evidence, or evidence of greater weight, but needs only to be balanced to defeat the plaintiff’s case and require him again to go forward with the proof. . . . After testimony is adduced tending to overcome a presumption, it ceases to have probative force.”

Perhaps in some circumstances one could be guilty of perpetrating a fraud by giving a bad cheek in payment of a debt, but here the evidence shows conclusively that Pecker was not defrauded by Edens giving him a check for $11,000.00. Pecker did not part with one dime at the time of receiving the check or at any time thereafter as a result of having received the check. There is not a scintilla of evidence that Edens intended to defraud Pecker by giving him the check. Edens had become indebted to Pecker in the sum of $11,000.00 several months before the check was issued. There was no possibility that the check could cause Pecker to lose anything except the time it might take to present the worthless check to the bank for payment. Certainly such a small inconvenience is not sufficient to base a six year sentence to the penitentiary.

Surely a verdict of guilty would not be sustained in every instance of a check being dishonored because of insufficient funds. In the case at bar, for instance, would a verdict of guilty be sustained against Pecker because his $7,000.00 check, which he later made good, was dishonored because of insufficient funds when it was first presented to the bank, or would a conviction of appellant’s father be sustained because the $400.00 check he gave Pecker for interest was no good, and later the $400.00 was paid in cash? Of course a verdict of guilty would not be sustained in a case of that kind.

If there was substantial evidence of the intent to defraud other than the mere giving of a bad check, such evidence could be sufficient to sustain a conviction, but here there is absolutely no evidence of the intent to defraud except the giving of the bad check and the presumption raised by such act is completely rebutted by the proven facts.

In St. Louis-San Francisco Railway Co. v. Spencer, 231 Ark. 221, 328 S. W. 2d 858, this Court said: “In the case of Kansas City Southern Railway Co. v. Shane, 225 Ark. 80, 279 S. W. 2d 284, 287, this statement was made: ‘In construing § 73-1002 above our rule appears to be well settled where an injury is caused by the operation of a railway train a prima facie case of negligence is made against the company operating such train and the burden rests on the company to show that it was not guilty of negligence ’. In that case it was stated that the statute in question creates a presumption or inference of negligence on the part of the railroad company. In the same case, however, the court approved what now appears to be the settled rule of this court to the effect that ‘ The only legal effect of this inference is to cast upon the railway company the duty of producing some evidence to the contrary. When that is done, the inference is at an end, and the question of negligence is one for the jury upon all the evidence.’ ”

In the Spencer case a judgment against the railroad company was reversed and the cause dismissed because there was no evidence of negligence except the statutory presumption. The Court held that the presumption was not sufficient to take the case to the jury in the face of other evidence showing there was no negligence. The same rule applies in the case at bar.

The judgment is reversed, and since the cause appears to have been fully developed, it is dismissed.

McF addin, J., dissents.