People v. Schullar

M. J. Kelly, P. J. Defendant James Schullar was convicted of issuing a check without sufficient funds contrary to MCLA 750.131; MSA 28.326, sentenced to serve 24 months on probation, the first 30 days of that probation in the county jail, and to make restitution to the complaining witness, and appeals. The thrust of defendant-appellant’s appeal can be summarized in two questions: (1) Did the defendant have the intent to defraud at the time of the making and delivery of the first check on the date of the transaction? (2) Was there such an agreement at the time of the transaction which would abrogate the intent to defraud? That is, did the complaining witness, Floyd Bentley, agree to hold defendant’s check for two weeks before depositing? The check in question was dated February 11, 1972, and the amount was for $200. The vice-president of defendant’s bank testified that defendant had opened a checking account the 18th of the previous month with disastrous results. The check in question was only one of many which were not honored and at the time it was presented defendant’s account had accumulated overdrafts totaling $1,990. It was defendant’s claim that he had not issued the check with intent to defraud but that the complaining witness had agreed to hold it for a couple of weeks during which time he would have put sufficient funds in to cover. In fact defendant claimed he was never put on notice that the check [164] was not honored because his records had been destroyed by fire. Obviously the jury did not believe the defendant but chose on proper instruction to find that the defendant violated the statute in question. The trial judge instructed in part: "The purpose of this statute is to give some degree of dependability on checks in our everyday lives and the daily conduct of business. The false representation that the maker then has sufficient funds on deposit from which a bank will pay on presentation or credit, with intent thereby to defraud the person to whom the check is given, is wrongful conduct for which the statute provides a penalty.” The dissent says that the trial judge omitted the word "then” in its instruction on People v Jacobson, 248 Mich 639; 227 NW 781 (1929), but we find that the trial judge adequately instructed, taking the instructions as a whole. The question as to an agreement to hold the check was controverted between the testimony of the defendant, the testimony of the complaining witness and by inference, the testimony of the bank vice-president. Examination of the record and briefs discloses no prejudicial error. Affirmed. Bronson, J., concurred.