(dissenting, with whom Liacos, J., joins). The jury reasonably could have understood from the judge’s instructions that the defendant’s failure to pay Zayre the amount of the check, plus additional costs and fees, within two business days after notice of dishonor, by zYseZ/permitted them to find beyond a reasonable doubt that, when the defendant issued the check, she knew there were insufficient funds for its payment, and she intended to defraud Zayre. In my opinion, such inferences were not warranted, and *317therefore the instruction was erroneous.1 Furthermore, the error requires reversal because, regardless of whether other evidence might have warranted findings of the requisite knowledge and intent, as the court concludes, surely it was not so overwhelming that the court may rightfully conclude that the jury’s findings were uninfluenced by the erroneous instruction. Therefore, the instruction created a substantial risk of a miscarriage of justice, requiring reversal. Commonwealth v. Williams, 378 Mass. 242 (1979). Commonwealth v. Freeman, 352 Mass. 556, 564 (1967).
The judge instructed the jury that, under the statute, failure to pay within two business days after notice of dishonor is prima facie evidence that the check was issued with knowledge of an insufficiency of funds for its payment and with an intent to defraud. The judge then told the jury that, in the absence of competing evidence, they were permitted, though not required, to find that the inferred facts were true beyond a reasonable doubt. The court states, ante at 314, that, even if the inference was not constitutionally permissible, there was no miscarriage of justice because the judge limited the use of the inference to situations where there was no competing evidence. The court reasons that, because in this case there was competing evidence, the jury could not have been improperly influenced by the instruction even if it was constitutionally infirm. I do not agree. In my view, fairness requires that the impact of that instruction on the jury should not so readily be dismissed.
Since the defendant did not object at trial to the jury instructions, appellate review is confined to whether an error has occurred that creates a substantial risk of a miscarriage of justice. Commonwealth v. Freeman, supra at 561-564. In my view, if the instruction was constitutionally infirm, there is a substantial risk that it influenced the jury in a way unfairly *318prejudicial to the defendant’s rights. The court appears to reason that, in view of the presence of competing evidence, the prima facie evidence instruction must have been understood by the jury to be mere surplusage having no bearing on the case. But this ignores the fact that jurors reasonably assume that the purpose of jury instructions is to assist them in deciding the controversy before them in accordance with established rules. The jury, then, would have had good reason to conclude that the permissible inference about which the judge spoke, and which he did not specifically tell them was not available, was indeed available to assist them in deciding what the defendant knew and intended when she issued her check to Zayre. “Otherwise,” the jurors might logically have inquired, “why would the judge have told us about the prima facie evidence provision and its inferential value?”
It is necessary to consider, therefore, whether the judge’s instruction about the prima facie evidence provision in G. L. c. 266, § 37, was constitutionally sound. I believe that it was not. In several cases, the United States Supreme Court has discussed the use in criminal trials of inferences permitted by statute. See Ulster County Court v. Allen, 442 U.S. 140 (1979); Barnes v. United States, 412 U.S. 837 (1973); Turner v. United States, 396 U.S. 398 (1970); Leary v. United States, 395 U.S. 6 (1969); Tot v. United States, 319 U.S. 463 (1943). For a relevant discussion, see Commonwealth v. Pauley, 368 Mass. 286, 292-299 (1975). Certain principles, significant to this appeal, have emerged. Those principles have been articulated in Ulster County Court v. Allen, supra, as follows: First, a statutory inference “must not undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” Id. at 156, citing Mullaney v. Wilbur, 421 U.S. 684, 702 n.31 (1975), and In re Winship, 397 U.S. 358, 364 (1970). It follows that, if a statutory permissive inference is the sole basis for finding an essential element of the crime, the inference must be warranted beyond a reasonable doubt. Ulster County Court v. Allen, supra at 166-167. Second, if a statutory permissive inference is not relied on as the sole basis for finding an essential *319element of the crime, but simply constitutes a part of the proof of such an element, there at least must be some rational connection, in light of all the evidence in the case, between the basic fact proved and the ultimate fact in issue. There is a rational connection when the ultimate fact (the element of the crime) more likely than not follows from the basic fact. Id. at 157, 163-167.
As I have stated, the judge’s instruction might reasonably have led the jury to believe that the statutory inference by itself would permit them to find that, at the time of issuance, the defendant knew the check would not be paid, and she intended to defraud Zayre. Therefore, the critical question is whether, standing alone, the defendant’s failure to make the check good within the statutory period would satisfy any rational trier of fact beyond a reasonable doubt that the defendant had issued the check dishonestly. Commonwealth v. Latimore, 378 Mass. 671, 677-678 (1979). I would answer that question in the negative. Common sense and experience tell us that the issuance of a check for which, at the time of presentation, there are insufficient funds for payment, is as likely to result from the drawer’s erroneous bookkeeping or other mistake, or inattention, as from the drawer’s fraudulent intent. That balance of probabilities is not tilted in favor of the Commonwealth by subsequent nonpayment after notice of dishonor. That is because common sense and experience also tell us that, once the mistake or inattention has occurred, for many individuals financial embarrassment and inability to pay are likely to follow. Surely, a defendant’s inability to make restitution for a bad check within two business days after notice of dishonor does not warrant a finding beyond a reasonable doubt that an honest mistake or inattention was not the genesis of the check. In my view, whatever other evidence of the defendant’s state of mind there may have been, it was far from overwhelming. I believe that the judge’s instruction on prima facie evidence seriously undermined the jury’s responsibility to find the several elements of the crime with which the defendant was charged beyond a reasonable doubt, and thus created a substantial risk of a miscarriage of justice.
*320Therefore, I would reverse the conviction. I would remand the case for trial,2 and, for purposes of the next trial, I would advise that, if the evidence proves to be substantially the same as the evidence in the present record, no instruction of any kind relative to prima facie evidence will be warranted.
I believe that it also would have been error for the judge to instruct the jury that they could consider the defendant’s failure to reimburse Zayre along with other evidence in deciding the elements of knowledge and intent. In my view, failure to make the check good and to pay related costs simply had no tendency whatsoever, on the record in this case, to show an earlier criminal intent.
My review of the record indicates that there is a serious question whether the evidence was sufficient as a matter of law to warrant a guilty finding. However, although the defendant raised that issue by motion at trial, she has not pursued it on appeal. The Commonwealth, therefore, has not had a fair opportunity to confront the issue. For that reason, I do not argue that the court should order the entry of judgment for the defendant.