State v. Prettyman , 113 Utah 36 ( 1948 )

I concur with the result on the grounds pointed out in the prevailing opinion and as elaborated on by Mr. Justice Latimer to the effect that under the arrangements between Mr. Raymond and the defendant, even if Mr. Raymond had deposited the money in the bank to cover this check, no arrangements were made by defendant to have the bank pay this on presentation. However, I am inclined to believe with Mr. Justice Pratt that had such arrangements been made the evidence is such that all reasonable minds must entertain a reasonable doubt that defendant delivered this check with the intention to defraud. If such were the case then there was no question of fact for the jury to decide but only a law question for the court and it should have directed a verdict of not guilty.

Under Section 103-18-11, U.C.A. 1943, the delivery of a check with knowledge at the time thereof that the maker has not sufficient funds or credit with the drawee bank to pay such check in full upon presentation is made prima facie evidence of an intention to defraud. What constitutes a prima facie case is always for the court and not for the jury to determine. Peterson v. Sorenson, 91 Utah 507, 65 P.2d 12, dissenting opinion Utah Rep. page 529, Pacific Rep. page 22. If the court decides that a prima facie case has been made it submits the case to the jury but if it holds that such a case has not been established it directs a verdict. If the case is submitted to the jury they do not pass on the question of whether a prima facie case has been made, their only concern is whether the evidence convinces them that there is no reasonable doubt of defendant's guilt. If the jury concludes that there is no such doubt they should find the defendant guilty otherwise he should be acquitted. In all cases the jury should decide that question from the probative evidence adduced at the trial. A presumption is not and cannot be evidence, and to attempt to weigh it as such involves a mental operation which is impossible to comprehend. A presumption is not the fact on which it is based nor the inference to be drawn therefrom but is the legal consequence thereof. See "Some Observations Concerning Presumptions," 44 Harvard Law Review 906-934, and "Instructing the Jury on Presumptions," 47 Harvard Law Review 59-83, both by Edmund M. Morgan. That such is the law of this state see State v.Green, 78 Utah 580, 6 P.2d 177, and other cases cited to that effect in Mr. Justice Pratt's opinion herein. However, it must be kept in mind, that if the facts on which the presumption is based inherently have a logical tendency to prove the ultimate fact which is presumed therefrom, such facts are in evidence and may always be considered and weighed by the jury for whatever they are worth in determining the ultimate fact. See citations to Harvard Law Review above. For the court to instruct the jury that certain facts are prima facie evidence of other facts, or that the proof of certain facts raised a presumption or inference that another fact exists, has a tendency to confuse the jury by instructing them on a subject about which the jury has no concern, and would probably mislead them to believe that proof of the first set of facts would require them to find the second fact, and would probably violate the rule against commenting on the evidence. SeeState v. Barretta, 47 Utah 479, 155 P. 343; State v.Sawyer, 54 Utah 275, 182 P. 206; State v. Mellor, 73 Utah 104,272 P. 635; State v. Donovan, 77 Utah 343, 294 P. 1108;Peterson v. Sorenson, 91 Utah 507, 65 P.2d 12, Ephraim Hanson, dissenting, Utah Reports page 529, Pacific Reports page 22; State v. Bruno, 97 Utah 33, 92 P.2d 1103; State v.Brooks, 101 Utah 584, 126 P.2d 1044; State v. Hall,105 Utah 162, 145 P.2d 494; and State v. Peterson, 110 Utah 413,174 P.2d 843, concurring opinion by this author.

Some of these cases hold that the giving of such instructions though improper are not reversible error unless prejudice is shown. See State v. Donovan, supra; State v. Sawyer, supra; State v. Mellor, supra, holds such instructions not improper under certain circumstances; and State v. Hall, supra, held to give such instruction improper but if instruction had been different it would have been more proper.

Thus it is improper to instruct the jury as to the effect of a statute making one set of facts and circumstances prima facie evidence of an ultimate fact in the case. Of course, the giving of such instruction would not necessarily be prejudicial. But if the jury is not instructed on this statute or the inference provided therein, there will be no possibility that they will weigh or consider it as evidence in the case and so no harm can come therefrom.

Our problem is not whether the jury improperly considered the effect of this statute but whether there was sufficient evidence to sustain their verdict. In a criminal case, if all reasonable minds must agree that under the evidence shown there is a reasonable doubt of defendant's guilt then no question of fact is presented for the jury. It might be more accurate, since we are concerned with what is reasonable rather than with the type of mind which determines the question, to say that if under the evidence it would be unreasonable to find that there is no reasonable doubt of defendant's guilt then, as a matter of law, the court must direct a verdict of not guilty. It requires stronger or more convincing evidence to sustain a conviction in a criminal case than it does to sustain a finding in a civil action. In civil actions ordinarily all that is necessary to sustain a finding in favor of the proponent thereof is that the evidence be such that it would be reasonable to find that it preponderates in proponent's favor, but in a criminal case the evidence must be such that it would be reasonable to find therefrom that there is no reasonable doubt of defendant's guilt. The evidence necessary to sustain a finding that there is no reasonable doubt of defendant's guilt must be definitely stronger or more convincing than that which is required to support a finding that the evidence preponderates in proponent's favor because it might be well within reason to find that the preponderance of the evidence is in favor of a proposition but be entirely unreasonable to find that there is no reasonable doubt that the contrary of such proposition is true.

Under Sec. 103-18-11, U.C.A. 1943, the delivery of a check knowing that the maker has not sufficient funds or credit with the payee to pay the check in full upon presentation is made prima facie evidence of an intention to defraud. The statute does not expressly make any exception to that rule, but I believe that the legislature intended it to only be such in the absence of other evidence which would explain those facts in such a manner that it would be unreasonable to hold that there is no reasonable doubt of such intention. The defendant in a criminal case is presumed to be innocent until his guilt is established beyond a reasonable doubt. Certainly the statute did not intend to remove this safeguard. So if in the light of all the evidence, including the facts on which the prima facie evidence is based and the explanation thereof, it would be unreasonable to find that there is no reasonable doubt of defendant's guilt then notwithstanding this statute the court should direct a verdict in his favor. See cases cited to that effect in prevailing opinion.

In the absence of an explanation to the contrary, the delivery of a check knowing that the maker has not sufficient funds or credit with the drawee to pay the same in full upon presentation logically tends to prove an intention to defraud. In enacting this statute the legislature recognized this logical tendency, and also recognized that there are grounds for a difference of opinion among the courts as to whether such facts would establish prima facie evidence of such an intention, and intended thereby to set that question at rest where those facts appear and their tendency to show an intention to defraud is not overcome by other evidence to the contrary.

Here defendant attempted to show that he had no intention to defraud although he concedes that he delivered the check under the circumstances required by the statute to make a prima facie case. For the reasons pointed out above, I agree that he failed in this because if the facts which he testified to were true they still did not negative such an intention. But if these facts and circumstances had shown that he had no such intention, or established a reasonable doubt of such intention, then I think the evidence of the existence of such facts and circumstances was such that no reasonable mind could hold that there was no reasonable doubt of his guilt. In other words I think that it would be unreasonable to hold that this evidence cannot reasonably be believed.

Here the defendant testified to the existence of these facts and circumstances: Mrs. Raymond corroborated him in that testimony, and she showed her good faith by paying the check when it was brought to her attention; defendant testified that he had sent a telegram to Raymond of the making of the check. The state could have shown whether this evidence was true or false, it could have investigated the character of Mrs. Raymond, but it did not. Under those circumstances I think it would be unreasonable to hold that those facts were not reasonably established. However, for the reasons stated, I concur with the result.