Maki v. State

Hornby, J., delivered the opinion of the Court. The defendant (Donald E. Maki), having been convicted by a jury of obtaining services and money by means of a bad check in violation of Code (1964 Cum. Supp.), Art. 27, § 142, contends on appeal that the lower court erred in not granting his motion for a judgment of acquittal. Although the defendant was charged in the warrant on which he was tried with having obtained services amounting to $7.73 and money in the amount of $7.27 from a gasoline service station (Frank and Jerry’s) in exchange for a worthless check for $15 dated January 26, 1964, the record shows that he also gave the service station another check for $12 on the same day.

Both checks were drawn on the Suburban Trust Company. The $15 check was not paid' upon presentation, but it is not clear whether the $12 check was ever presented for payment. The State elected to prosecute the defendant on the $15 check and ignored the $12 one. At the trial, the station attendant was unable to say which check he accepted in payment of the services and money obtained.

Nor could he recall how much change he had given the defendant after deducting $7.73 for the services rendered. The arresting officer, however, testified that when he showed the defendant the $15 check, he stated that he had written and signed it and that he received some cash and the rest in services but could not recall the exact amount of cash he received. He also told the officer that he had intended to make the check good. The bank records showed that at least twenty checks drawn by the defendant on his account with the trust company were presented for payment between January 9th and 22nd but were returned unpaid because there were no funds in the already overdrawn account.

On January 23rd, the overdraft was charged off, the account was closed and the defendant was promptly notified of that fact. So far as the record discloses, no funds were ³¹³ deposited with the drawee bank to meet the $15 check. The defendant disputed the date on which the account was actually-closed and the date he actually received notice thereof, but the arresting officer testified that the defendant had told him that he knew he did not have any money in the bank to cover the check he was charged with unlawfully issuing. At the request of defense counsel, the lower court advised the jury to the effect that it had to find as a fact in order to convict the defendant under the warrant, that the check used to perpetrate the false pretense was the one for $15 dated January 26, 1964.

Specifically, counsel for the defendant has assigned three reasons why (in his opinion) the lower court erred in refusing to grant the motion for a judgment of acquittal: (1) the State did not prove