                                     No. 12455

       I N THE SUPREME COURT O THE STATE O M N A A
                              F           F OTN

                                        1973

                                                   --   --



STATE OF MONTANA,

                              P l a i n t i f f and Respondent,



DELORES F. SKINNER,

                              Defendant and A p p e l l a n t ,



Appeal from:        District Court of t h e F i r s t J u d i c i a l D i s t r i c t ,
                    Honorable Gordon R. B e n n e t t , Judge p r e s i d i n g .

Counsel o f Record :

    For A p p e l l a n t :

           William Dee Morris a r g u e d , Helena, Montana

    For Respondent :

           Hon. Robert L. Woodahl, A t t o r n e y G e n e r a l , Helena,
            Montana
           J. C. W e i n g a r t n e r , A s s i s t a n t A t t o r n e y G e n e r a l , a p p e a r e d ,
            Helena, Montana
           Thomas Dowling , County A t t o r n e y , Helena, Montana
           L e i f B. E r i c k s o n , Deputy County A t t o r n e y , a r g u e d , Helena,
            Montana



                                                         Submitted:          September 11, 1973

                                                            Decided :        ~ C 25
                                                                                 T       &n
      :      OCT 2 5 k 3 ~
Hon. Robert Boyd, D i s t r i c t Judge, s i t t i n g i n place of J u s t i c e
Gene B , Daly, d e l i v e r e d t h e Opinion of t h e Court.

         Defendant Delores F. Skinner appeals from a judgment entered
i n t h e d i s t r i c t c o u r t of t h e f i r s t j u d i c i a l d i s t r i c t , Lewis and
Clark County, upon v e r d i c t s of g u i l t y on seven of n i n e counts of
u t t e r i n g and d e l i v e r i n g fraudulent checks contained i n t h r e e sep-
a r a t e Informations f i l e d a g a i n s t h e r on March 1, 1972, June 2 1 , 1972,
and August 24, 1972, and from d e n i a l of a motion f o r new t r i a l .
         Defendant, M r s .       Skinner, moved from Eugene, Oregon t o Helena,
Montana on January 18, 1972.                  Mrs. Skinner was divorced and had
custody of t h e minor c h i l d r e n of t h e marriage.                 Mrs. Skinner con-
tended t h a t d i f f i c u l i t i e s had a r i s e n with h e r ex-husband concerning
v i s i t a t i o n r i g h t s with t h e c h i l d r e n , which h e r ex-husband denied,
and she a l l e g e d M r .    Skinner had prevailed upon h e r t o r e t u r n t o
Montana t o simplify t h e matter of v i s i t a t i o n .              Mrs. Skinner had
requested her ex-husband t o advance h e r t h e sum of $1,000.00 upon
t h e monthly c h i l d support payments t o permit h e r t o e s t a b l i s h
residence i n Montana.             Some d i s p u t e e x i s t s a s t o whether o r n o t
Mr.   Skinner d i d i n f a c t agree t o make such an advance, b u t i n any
event no moneys were forthcoming o t h e r than t h e monthly support
payments.
         On January 20, 1972 Mrs. Skinner opened a checking account
a t t h e Union Bank and T r u s t Company of Helena and made an i n i t i a l
d e p o s i t of $25.00.      A t t h a t time she was given some temporary coded
checks and ordered some checks with a personal imprint.                                 Mrs.
Skinner proceeded t o w r i t e checks on t h e account commencing on
January 25, 1972, which r e s u l t e d i n t h e f i r s t Information being f i l e d .
The f i r s t check was w r i t t e n t o a department s t o r e and t h e second
and t h i r d were w r i t t e n t o a grocery s t o r e and merchandise was received
by M r s .   Skinner.      Mrs.    Skinner made no f u r t h e r d e p o s i t s t o t h e
account o t h e r than t h e i n i t i a l $25.00 d e p o s i t and a s a r e s u l t t h e
Union Bank and Trust Company caused t h e account t o be closed and
made such a n o t a t i o n on t h e checks returned t h e r e a f t e r .              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 Infor-
mations 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 Informa-
tion, 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 drive-
in 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 Informa-
tion.
        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 cross-
         .
examination.
        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 presenta-
     tion, 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 pun-
     ished 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 imprison-
     ment; if such check, draft or order be for a sum of
     twenty-five dollars ($25;0 ) or less, and there are some
                                 0
     but not sufficient P m d s 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
     ( ) months, or by a fine not exceeding three hundred
      6
     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 deposi-
     tary, or person, or firm, or corporation, for the pay-
     ment 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 im-




     Under 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, c h a p g the commission of
      the offense, has been made.
From the record it appears that prosecution of the first Informa-
tion 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 ver-
dicts 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'sprincipal 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 l e g i s l a t u r e recognized t h a t t h e s e two elements were d i f f i c u l t
t o prove and hence a provision i n t h e s t a t u t e a s t o t h e means of
proof.-- t h e f i v e day n o t i c e provision.             Under t h i s provision t h e
S t a t e can make a prima f a c i e case of i n t e n t t o defraud and know-
ledge of l a c k of funds by showing t h a t t h e drawer of t h e check
had been given f i v e days n o t i c e t h a t t h e check had n o t been honored
by t h e bank and had n o t made t h e check good w i t h i n t h e f i v e day
period.      To hold otherwise would be t o lend encouragement and give
any would-be check w r i t e r a f i v e day head s t a r t on any p o s s i b l e
prosecution.         W e hold t h a t t h e underlined p o r t i o n of t h e s t a t u t e
c o n s t i t u t e s a r u l e of evidence and i s n o t e s s e n t i a l t o t h e e s t a b l i s h -
ment of t h e crime.
         The next i s s u e r a i s e d concerns f i f t y - s e v e n NSF checks con-
s t i t u t i n g a s i n g l e e x h i b i t which was admitted i n t o evidence over
strenuous and continued o b j e c t i o n on t h e p a r t of counsel f o r M r s .
Skinner.       I t i s defendant's contention t h a t t h e admission i n t o
evidence of o t h e r crimes so prejudiced defendant t h a t she was de-
prived of a f a i r t r i a l .       This i s a question which has been p e r i o d i c a l l y
urged on t h i s Court.          Recently i n S t a t e v. F r a t e s ,      - .
                                                                               Mont         -
                                                                                            9



503 P.2d 47, 29 St.Rep. 960, t h i s Court reviewed t h e a p p l i c a b l e r u l e
and t h e exceptions t h e r e t o .        The d i s t r i c t c o u r t , a s w e l l a s t h i s
Court, i s o b l i g a t e d t o look very c a r e f u l l y a t t h e r e l a t i v e probative
value of t h e evidence of o t h e r o f f e n s e s , represented by t h e f i f t y -
seven checks included i n Exhibit No. 1 2 , and weigh t h i s a g a i n s t t h e
prejudice i n h e r e n t i n t h i s type of evidence i n l i g h t of t h e a c t u a l
need t o introduce such evidence by t h e S t a t e .                   The checks involved
i n Exhibit No. 12 were w r i t t e n from t h e period of January 25, 1972
through June 31, 1972, and during t h e time when Mrs. Skinner had
twice been brought before t h e d i s t r i c t c o u r t t o be arraigned on t h e
f i r s t two Informations.           The i n d i v i d u a l checks contained i n t h e
e x h i b i t tend t o e s t a b l i s h a common scheme, plan o r system s i m i l a r t o
and c l o s e l y connected with and not t o o remote from t h e ones charged
i n t h e Informations, tending t o prove t h e 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 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-in-
crimination.    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 cham-
bers, 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, Where-
upon 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 ,privilegeand 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 judg-
          ment 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 sen-
          tenced 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 M r . Justice Daly.




      i
          /chief Justice
/,'
