No. 12455 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

19 73 

-- - - 

STATE OF MONTANA, 

Plaintiff and Respondent, 

DELORES F. SKINNER, 

Defendant and Appellant, 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record : 

For Appellant : 

William Dee Morris argued, Helena, Montana 

For Respondent : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

J. C. Weingartner, Assistant Attorney General, appeared, 

Helena, Montana 

Thomas Dowling , County Attorney, Helena, Montana 

Leif B. Erickson, Deputy County Attorney, argued, Helena, 

Montana 

Submitted: September 11, 1973 

Decided : ~CT 2 5 &n 

: OCT 2 5 k3~ 
Hon. Robert Boyd, District Judge, sitting in place of Justice 

Gene B, Daly, delivered the Opinion of the Court. 

Defendant Delores F. Skinner appeals from a judgment entered 

in the district court of the first judicial district, Lewis and 

Clark County, upon verdicts of guilty on seven of nine counts of 

uttering and delivering fraudulent checks contained in three separate Informations filed against her on March 1, 1972, June 21, 1972, 

and August 24, 1972, and from denial of a motion for new trial. 

Defendant, Mrs. Skinner, moved from Eugene, Oregon to Helena, 

Montana on January 18, 1972. Mrs. Skinner was divorced and had 

custody of the minor children of the marriage. Mrs. Skinner contended that difficulities had arisen with her ex-husband concerning 

visitation rights with the children, which her ex-husband denied, 

and she alleged Mr. Skinner had prevailed upon her to return to 

Montana to simplify the matter of visitation. Mrs. Skinner had 

requested her ex-husband to advance her the sum of $1,000.00 upon 

the monthly child support payments to permit her to establish 

residence in Montana. Some dispute exists as to whether or not 

Mr. Skinner did in fact agree to make such an advance, but in any 

event no moneys were forthcoming other than the monthly support 

payments. 

On January 20, 1972 Mrs. Skinner opened a checking account 

at the Union Bank and Trust Company of Helena and made an initial 

deposit of $25.00. At that time she was given some temporary coded 

checks and ordered some checks with a personal imprint. Mrs. 

Skinner proceeded to write checks on the account commencing on 

January 25, 1972, which resulted in the first Information being filed. 

The first check was written to a department store and the second 

and third were written to a grocery store and merchandise was received 

by Mrs. Skinner. Mrs. Skinner made no further deposits to the 

account other than the initial $25.00 deposit and as a result the 

Union Bank and Trust Company caused the account to be closed and 

made such a notation on the checks returned thereafter. In addition 
to the nine checks which constituted the subject matter of the three 

Informations, an additional fifty-seven checks were written by 

Mrs. Skinner during this period and were admitted into evidence as 

a single exhibit, plaintiff's Exhibit No. 12, over objections. 

Following the return of the nine checks listed in the Informations to the various business firms, each firm individually made 

efforts to collect the moneys and received various promises of 

payment. Subsequently, following the filing of the last Information, all of the checks which were the subject matter of the nine 

counts in the Informations, together with a substantial number of 

the remaining fifty-seven checks, were paid by Mrs. Skinner through 

her attorney. 

The checks involved in the third Information were all cashed 

at a drive-in restaurant in the neighborhood where Mrs. Skinner 

resided, It appeared that these checks were delivered to the drivein by one of Mrs. Skinner's children and with at least one of the 

checks a note was delivered to the drive-in asking that the check 

be held for a few days. The note itself was not in evidence but 

the existence of such a note was obviously believed by the jury 

which returned a verdict of not guilty to Count Two of that Information. 

Defendant raises seven issues on appeal: 

1. Whether restitution constitutes a defense to the charge 

of uttering fraudulent checks. 

2. Whether the five day notice provision contained in section 

94-2702, R.C.M. 1947, is an element of the crime. 

3. Whether the court erred in allowing evidence of other 

acts to be admitted. 

4. Whether defendant was properly examined under crossexamination. 

5. Whether the attorney-client privilege was abused. 

6. Whether there was sufficient evidence to support the 

verdict . 

7. Whether the sentence was harsh and oppressive. 
Section 94-2702, R.C.M. 1947, under which prosecution was 

brought, reads: 

"Uttering fraudulent checks or drafts--evidence. 

Any person who for himself or as the agent or 

representative of another or as an officer of a 

corporation, willfully, with intent to defraud 

shall make or draw or utter or deliver, or cause 

to be made, drawn, uttered or delivered, any 

check, draft or order for the payment of money 

upon any bank or depositary, or person, or firm, 

or corporation, knowing at the time of such making, 

drawing, uttering or delivery that the maker or 

drawer has no funds or insufficient funds in or 

credit with such bank or depositary, or person, 

or firm, or corporation, for the payment of such 

check, draft, or order in full upon its presentation, although no express representation is made 

with the reference thereto, shall upon conviction 

be punished as follows: If there are no funds in 

or credit with such bank or depositary, or person, 

or firm, or corporation, for the payment of any part of 

such check, draft, or order, upon presentation, 

then in that case the person convicted shall be punished by imprisonment in the state prison not exceeding 

five (5) years, or by a fine not exceeding five thousand 

dollars ($5,000.00) or by both such fine and imprisonment; if such check, draft or order be for a sum of 

twenty-five dollars ($25; 00) or less, and there are some 

but not sufficient Pmds in or credit with such bank, 

or depositary, or person, or firm, or corporation, for 

the payment of such check, draft or order in full, then 

in that case the person so convicted shall be punished 

by imprisonment in the county jail not exceeding six 

(6) months, or by a fine not exceeding three hundred 

dollars ($300.00) or by both such fine and imprisonment; 

if such check, draft or order be for a sum greater than 

twenty-five dollars ($25.00) and there are some but not 

sufficient funds in or credit with such bank, or depositary, or person, or firm, or corporation, for the payment of such check, draft or order in full upon its 

presentation, then in that case the person so convicted 

shall be punished by imprisonment in the state prison not 

exceeding five (5) years, or by a fine not exceeding five 

thousand dollars ($5,000.00) or by both such fine and imUnder Montana statutes the crime of uttering fraudulent checks 

is one of the crimes of larceny and the statutes effectively deal 
with the contention raised by defendant. Section 94-271.7, R.C.M. 

1947, states in part: 

"* * * The fact that the defendant intended to 

restore the property taken is no ground of defense 

if it has not been restored before complaint, to 

a magistrate or court, chapg the commission of 

the offense, has been made. 

From the record it appears that prosecution of the first Information was commenced on March l, 1972. The initial portion of the 

restitution made by defendant was not made until June 2, 1972, 

and no restitution on any of the counts was made until after the 

been 

Informations had /filed in the district court. 

We note, in passing, that defendant had made promises of 

payment subsequent to the filing of the charges to various business 

establishments involved. Defendant contended that this constituted 

"credit" as defined in section 94-2702, R.C.M. 1947. The term 

"credit" referred to in that section is credit at the time of 

making, drawing, uttering or delivering the check. The statute does 

not refer to later arrangement for credit. In the instant case 

there is no evidence at all to indicate that defendant had "credit" 

with any of the payees on any of the checks upon which guilty verdicts were returned. Therefore, we hold that restitution subsequent 

to the filing of criminal complaint and subsequent promises to pay 

do not constitute a defense to the crime of uttering and delivering 

fraudulent checks. 

~efendant's principal contention and the one to which the 

greater portion of the briefs and argument by counsel for Mrs. 

Skinner is directed is the five day notice provision contained in 

section 94-2702, R.C.M. 1947, underlined heretofore. Defendant 

asserts that in the absence of any showing that the five day notice 

specified in the statute was given, there can be no conviction and 

the trial court erred in refusing to so instruct the jury. 

With this contention we disagree. A most casual reading of 

the statute indicates these essential elements of the crime of 

uttering and delivering a fraudulent check: (1) The intent to defraud, 

and (2) the knowledge of insufficient funds or no funds on deposit. 
The legislature recognized that these two elements were difficult 

to prove and hence a provision in the statute as to the means of 

proof.-- the five day notice provision. Under this provision the 

State can make a prima facie case of intent to defraud and knowledge of lack of funds by showing that the drawer of the check 

had been given five days notice that the check had not been honored 

by the bank and had not made the check good within the five day 

period. To hold otherwise would be to lend encouragement and give 

any would-be check writer a five day head start on any possible 

prosecution. We hold that the underlined portion of the statute 

constitutes a rule of evidence and is not essential to the establishment of the crime. 

The next issue raised concerns fifty-seven NSF checks constituting a single exhibit which was admitted into evidence over 

strenuous and continued objection on the part of counsel for Mrs. 

Skinner. It is defendant's contention that the admission into 

evidence of other crimes so prejudiced defendant that she was deprived of a fair trial. This is a question which has been periodically 

urged on this Court. Recently in State v. Frates, - Mont . -9 

503 P.2d 47, 29 St.Rep. 960, this Court reviewed the applicable rule 

and the exceptions thereto. The district court, as well as this 

Court, is obligated to look very carefully at the relative probative 

value of the evidence of other offenses, represented by the fiftyseven checks included in Exhibit No. 12, and weigh this against the 

prejudice inherent in this type of evidence in light of the actual 

need to introduce such evidence by the State. The checks involved 

in Exhibit No. 12 were written from the period of January 25, 1972 

through June 31, 1972, and during the time when Mrs. Skinner had 

twice been brought before the district court to be arraigned on the 

first two Informations. The individual checks contained in the 

exhibit tend to establish a common scheme, plan or system similar to 

and closely connected with and not too remote from the ones charged 

in the Informations, tending to prove the offenses charged. 
A similar fact situation existed in State v. Tully, 148 

Mont. 166, 418 P.2d 549. The trial court based its decision to 

admit Exhibit No. 12 into evidence upon the authority of Tully 

and correctly so. 

~efendant's next issue on appeal contends she was prejudiced 

during the course of cross-examination by the State, attempting 

to further identify the checks contained in Exhibit No. 12, by 

requiring defendant on cross-examination to either continually 

seek refuge in the Fifth Amendment or run the risk of self-incrimination. However, having voluntarily assumed to testify in 

her own defense and the evidence having been properly admitted, 

the State on cross-examination asked and Mrs. Skinner answered: 

"Q. The checks that have been placed in state's 

Exhibit 12, did you write all of these checks? 

"A. Yes, I did, 

"Q. Every single one that is in there? 

"A. I assume so. 

"Q. Will you look at them?" 

At this point counsel for defendant requested leave to enter an 

objection outside the presence of the jury. Thereafter, in chambers, counsel objected on the grounds that to require defendant 

to testify concerning the individual checks contained in Exhibit 

No. 12 would violate her right against self-incrimination, Whereupon the court sustained the objection and the State abandoned 

any further inquiry concerning Plaintiff's Exhibit No. 12, We 

fail to see where defendant was subjected to any prejudice after 

having answered, without objection, that she had written all of the 

checks. 

During the course of cross-examination these questions 

were asked: 

Q. You stated in response to a question by your 

counsel that as far as you knew, all of the checks 

that you had written have been paid off, is that 

correct 

"A. To the best of my knowledge. 
"Q. Does that include checks that were contained 

in Exhibit No. 12?" 

To the latter question defendant's counsel interposed an objection 

based upon the ground of attorney-client privilege. It does not 

appear to the Court that the question posed in any way related to 

the attorney-client ,privilege and the objection was correctly 

overruled. 

A careful review of the entire record on appeal reveals 

that there was ample evidence, including the testimony of defendant 

herself as to the commission of the offenses alleged, to sustain 

the verdicts. 

Defendant urges one further issue on appeal which has to do 

with the sentence pronounced. Defendant was found guilty of seven 

counts of uttering and delivering fraudulent checks. In its judgment the court ordered that she be imprisoned in the state prison 

for the term of two years on each of the seven counts with one 

year of each of said sentences suspended, the sentences to run 

consecutively. Under the statute defendant could have been sentenced up to five years on each count plus a fine. In State v. 

Karathanos, 158 Mont. 461, 468, 493 P.2d 326, this Court said: 

I1 It is the general rule that a sentence within 

the maximum authorized by statute is not cruel 

and unusual punishment. I I 

Finding no merit in any of defendant's contentions, the 

judgment and sentence of the district court is affirmed. 

istrict Judge, 

sitting for Mr. Justice Daly. 

i 

/,' 

/chief Justice