(Dissenting). I agree that the judgment in this case should be reversed; but I dissent as to the dismissal of the case.
The judgment should he reversed because of Assignment No. 18 in the motion for new trial, which relates to statements made by the Prosecuting Attorney in the final argument to the jury; and some cases holding such statements to require reversal are: Paul v. State, 99 Ark. 558, 139 S. W. 287; Thomas v. State, 107 Ark. 469, 155 S. W. 1165.
However, I am firmly of the opinion that there was a case made for the jury, and the cause should be remanded for a new trial. Even if the Majority considers the evidence offered by the State to be weak (which I do not), nevertheless there was some evidence of guilt offered, and it may be strengthened on a new trial; so the case should be remanded according to such cases as: Reed v. State, 97 Ark. 156, 133 S. W. 604; Johnson v. State, 210 Ark. 881, 197 S. W. 2d 936; Grigson v. State, 221 Ark. 14, 251 S. W. 2d 1021; Anderson v. State, 226 Ark. 498, 290 S. W. 2d 846; and Poole v. State, 234 Ark. (adv. opn.) 593, 353 S. W. 2d 359. Each of these cases involved violation of the criminal laws, and is ruling here. "With due deference to my associates on the 'Court, I must nevertheless state that the Majority Opinion seems to me to indicate that this Court is acting as an appellate jury in this case and bringing in a verdict of “Not Guilty”; whereas I contend this Court should remand the case for a new trial, as was done in each of the five cases just cited above.
Now, I desire to go further and discuss (I) the statute under which the appellant was prosecuted; and (II) some of the evidence presented by the State.
I. The Law Under Which Appellant Was Prosecuted. Appellant was tried and convicted of violating the “Arkansas Hot Check Law,” which is Act No. 241 of 1959. Even though the law may have been changed, the appellant is tried under the law1 applicable at the time of the offense, the date of which is stated to be May 20, 1960. The germane portion of Section 2 of the Act 241 reads:
“It shall be unlawful for any person ... to make payment of any pre-existing debt or other obligation of whatsoever form or nature, or for any other purpose, to make or draw or utter or deliver, with intent to defraud, any check, draft or order, for the payment of money, upon any bank, . . . knowing at the time of such making, drawing, uttering or delivering, that the maker, or drawer, has not sufficient funds in, or on deposit with, such bank . . . for the payment of such check . . . and all other checks . . . upon such funds then outstanding.”
The germane portion of Section 4 of the Act No. 241 of 1959 reads:
“As against the maker, or drawer thereof, the making, drawing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud . . .” Thus, the giving of a “hot” check to pay a previous indebtedness is an offense; and when the bank refuses payment on the check, such fact is “prima facie evidence of intent to defraud.” That is what the statute says; and the Majority Opinion does not even intimate that such statute is unconstitutional.
II. The Evidence Against Appellant. With the law stated as above, I turn now to the evidence: Arnold Edens was an officer in a corporation called “United Enterprises, Inc.” in Paragould, Arkansas; and Raymond Recker was an individual who lived in Walnut Ridge, in Lawrence County, Arkansas. Edens was the “moving spirit,” or general manager of the United Enterprises, Inc.; and Edens and Recker had been acquainted for several years. In January 1960 Recker approached Edens to see if United Enterprises could purchase for Recker a particular 160 acres of land; and Edens required Recker to deposit with United Enterprises the sum of $11,000.00 as the proposed purchase price of said lands which United would seek to purchase for Recker. A receipt of $11,000.00 was issued to Raymond C. Recker, which stated: “For deposit in full, 160 A Bovine Land, subject to approval of R. C. Recker.” This receipt on the United Enterprises’ form, was signed by Arnold Edens, dated January 15, 1960, and was introduced in evidence.
United Enterprises did not acquire the land for Recker and he demanded the return of his money; but the United Enterprises had used Recker’s money for some other purpose not disclosed; and, finally, on May 20, 1960, Arnold Edens, appellant here, issued his personal check to Raymond Recker for $11,000.00, drawn on The Security Bank & Trust Company of Paragould, Arkansas. It was clearly established that Edens never had over $1,000.00 in his account in The Security Bank & Trust Company of Paragould at any time. When the bank refused to pay the $11,000.00 check, Edens, attempted to give Recker other checks and to delay matters as long as possible.
Did Edens intend to defraud Recker? Edens and his company received $11,000.00 of Recker’s money on January 15, 1960; then Edens toyed along with Recker for months by giving’ him a check on May 20, 1960 for $11,000.00 and by issuing other checks to further delay matters. Surely the evidence outlined above is sufficient to take the case to the jury and fair-minded men should have an opportunity to decide whether Edens was guilty of an attempt to defraud Recker. Regardless of all that the Majority Opinion said about overcoming presumptions — which I will subsequently mention — I still contend that a case was made for the jury under the proof here offered.
The Majority says, however, that this statutory provision in Section 4 — about the failure of the bank to pay the check being prima facie evidence of intent to defraud — was entirely dissipated by other testimony. Whose testimony? It was the testimony of Edens. He was the witness who tried to explain away the entire transaction and say that he was only doing Becker a favor to give him the check. The law is well established that the testimony of an interested person is never undisputed as a matter of law. Stovall v. Stovall, 228 Ark. 1077, 312 S. W. 2d 337; Lewis v. Lewis, 222 Ark. 743, 262 S. W. 2d 456; Phelps v. Partee, 208 Ark. 212, 185 S. W. 2d 705; and Business Men v. Sanderson, 144 Ark. 271, 222 S. W. 51. So Edens’ testimony stands disputed by the law and the presumption of intent to defraud takes the case to the jury.
Section 4 of the Act No. 241 uses the words, “prima facie evidence.” In 23 C. J. S. 534 “Criminal Law” § 900, the text reads:
“ ‘Prima facie evidence’ is evidence, direct or circumstantial, which indicates to a reasonable person such strong probability of guilt that accused’s denial or explanation is called for, and which standing alone is sufficient to convict him of the offense with which he is charged; but such evidence is not necessarily conclusive and may be rebutted not only by contradictory evidence, but also by evidence so explaining the conditions and circumstances under which the alleged offense was committed as to convince the jury that the person charged is not guilty.” (Emphasis supplied.)
The above quotation says that the prima facie evidence takes the case to the jury; and that is exactly what I believe. The Majority Opinion cites some railroad cases construing a statute on burden of proof. These cases are not in point. There are “disappearing presumptions”, and there are “continuing presumptions”;2 and I maintain that in the case at bar the Legislature has made the dishonoring of a check prima facie evidence, sufficient to take the case to the jury. But, even if it should be a “disappearing presumption,” still it would require uncontradicted evidence to dissipate the presumption; and the evidence offered by Edens was his own testimony, which certainly is contradicted as a matter of law.
In short, I see no escape from the conclusion that this case should be reversed and remanded for a new trial. Certainly it should not be dismissed.
The Act No. 241 of 1959 may now be found in §§ 67-719 et seq. Ark. Stats.
On this matter of “Presumptions” here are some annotations in American Law Reports, for the benefit of any who desire to read them: “Constitutionality of statutes or ordinances making one fact presumptive or prima facie evidence of another,” 51 A.L.R. 1139, 86 A.L.R. 179, and 162 A.L.R. 495; “Res ipsa loquitur — Burden of proof or evidence,” 59 A.L.R. 486, and 92 A.L.R. 653; “Presumption as Evidence,” 95 A.L.R. 878; “Presumption of innocence as evidence,” 94 A.L.R. 1042, and 34 A.L.R. 938; “Presumption against suicide as evidence,” 103 A.L.R. 185, and 114 A.L.R. 1226; “Directing verdict where based on testimony of party,” 72 A.L.R. 27. See also McCormick on Evidence §'310 et seq.