No. 12455 INTHE 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 theFirstJudicial 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: 

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## k3~Hon. Robert Boyd, District Judge, sittinginplace 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 firstjudicial 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 fornew trial. Defendant, Mrs. Skinner, moved from Eugene, Oregon toHelena, Montana on January 18, 1972. Mrs. Skinnerwas divorced and had custody of the minor children of the marriage. Mrs. Skinner contended that difficulitieshad arisenwith her ex-husband concerning visitation rightswith the children, which her ex-husband denied, and she alleged Mr. Skinner had prevailed upon her toreturn to Montana to simplify the matter of visitation. Mrs. Skinnerhad 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 inMontana. Some dispute exists as towhether ornot Mr. Skinner did in fact agree tomake such an advance, but inany event no moneys were forthcoming other than the monthly support payments. On January 20, 1972Mrs. Skinner opened a checking account atthe Union Bank and Trust Company of Helena and made an initial deposit of $25.00. Atthat time she was given some temporary coded checks and ordered some checks with a personal imprint. Mrs. Skinner proceeded towrite checks on the account commencing on January 25, 1972, which resulted inthe first Information being filed. The firstcheck was written to a department storeand 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 tobe closed and made such a notation on the checks returned thereafter. In additionto the nine checkswhich constituted the subjectmatter of the three Informations,an additional fifty-seven checkswere 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 subjectmatter of the nine counts in the Informations, togetherwith a substantial number of the remaining fifty-sevenchecks, were paid by Mrs. Skinner through her attorney. The checks involved in the third Informationwere all cashed at a drive-in restaurant in the neighborhood where Mrs. Skinner resided, It appeared that these checkswere delivered to the driveinby one of Mrs. Skinner's children and with at least one of the checks a notewas delivered to the drive-inasking that the check be held for a fewdays. The note itselfwas not in evidence but the existence of such a notewas obviously believed by the jury which returned a verdict ofnot 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-clientprivilegewas abused. 6. Whether there was sufficient evidence to support the verdict

# . 7. Whether the sentencewas harsh and oppressive.Section 94-2702,R.C.M. 1947,underwhich prosecutionwas 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 shallmake 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 anybank or depositary, or person, or firm, or corporation, knowing at the time of suchmaking, drawing,uttering or delivery that the maker or drawer has no funds or insufficient funds in or creditwith suchbank 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 creditwith 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 shallbe punished by imprisonment in the stateprison not exceeding five (5) years, or by a finenot 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 creditwith suchbank, 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 shallbe punished by imprisonment in the county jailnot exceeding six

(6) months, orby a finenot exceeding three hundred dollars ($300.00) orby both such fine and imprisonment; if such check,draft or orderbe for a sum greater than twenty-five dollars ($25.00) and there are somebut not sufficient funds in or creditwith suchbank, 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 shallbe punished by imprisonment in the stateprison not exceeding five 

### (5) years, or by a finenot 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 dealwith the contention raised by defendant. Section 94-271.7, R.C.M. 1947, states in part: 

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# ** 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, chapgthe commission of the offense, has been made. From the record it appears that prosecution of the first Informationwas commenced on March l, 1972. The initialportion of the restitutionmade by defendantwas not made until June 2, 1972, and no restitution on any of the countswas made until after the been Informationshad/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 verdictswere returned. Therefore,we hold that restitution subsequent to the filing of criminal complaint and subsequentpromises 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 statutewas given, there canbe no conviction and the trial court erred in refusing to so instruct the jury. With this contentionwe 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 legislaturerecognized that these two elements were difficult toprove and hence a provision in the statuteas to the means of proof.-- the five day notice provision. Under this provision the Statecan 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 thebank and had not made the check good within the fiveday period. To hold otherwisewould 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 isnot essential to the establishment of the crime. The next issue raised concerns fifty-seven NSF checks constituting a singleexhibitwhich was admitted into evidence over strenuous and continued objection on the part of counsel for Mrs. Skinner. It isdefendant's contention that the admission into evidence of other crimes so prejudiced defendant that shewas deprived of a fairtrial. This isa questionwhich has been periodically urged on this Court. Recently in State v. Frates, 

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# . -9 503 P.2d 47, 29 St.Rep. 960, this Court reviewed the applicablerule and the exceptions thereto. The district court, aswell as this Court, is obligated to look very carefully atthe relative probative value of the evidence of other offenses, represented by the fiftyseven checks included inExhibit No. 12, and weigh this against the prejudice inherent inthis type of evidence in light of the actual need to introduce such evidence by the State. The checks involved inExhibit No. 12were 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 tobe arraigned on the firsttwo Informations. The individual checks contained inthe 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'snext issue on appeal contends shewas prejudiced during the course of cross-examinationby 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 FifthAmendment 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-examinationasked and Mrs. Skinner answered: "Q. The checks that have been placed in state's Exhibit 12,did youwrite all of these checks? "A. Yes, 

### Idid, "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. 12would 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 seewhere defendantwas subjected to any prejudice after having answered,without objection, that she had written all of the checks. During the course of cross-examinationthese questions

were asked: Q. You stated in response to a questionby your counsel that as far as youknew,all of the checks that youhad written have been paid off, is that correct "A. To the best of my knowledge.

### "Q. Does that include checks thatwere contained in Exhibit No. 12?" To the latter question defendant's counsel interposed an objection based upon the ground of attorney-clientprivilege. It does not appear to the Court that the questionposed in any way related to the attorney-client ,privilegeand the objectionwas correctly overruled. 

### A careful review of the entire record on appeal reveals that therewas 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 appealwhich has to do with the sentencepronounced. Defendantwas found guilty of seven counts of uttering and delivering fraudulent checks. In its judgment the court ordered that shebe imprisoned in the state prison for the term of two years on each of the seven countswith 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, 158Mont. 461,468,493 P.2d 326, this Court said:

I1It is the general rule that a sentence within the maximum authorized by statute isnot cruel and unusual punishment.II 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