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12/08/77 COMMONWEALTH v. CHARLES OHANIAN (AND A

December 8, 1977

COMMONWEALTH
v.
CHARLES OHANIAN (AND A COMPANION CASE) *FN1



Middlesex. Indictments found and returned in the Superior Court on May 14, 1975. The cases were tried before Mazzone, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own initiative, ordered direct appellate review.

Hennessey, C.j., Braucher, Wilkins, Liacos, & Abrams, JJ.

SYLLABUS BY THE COURT

Larceny. Pleading, Criminal, Indictment, Variance. Practice, Criminal, Former jeopardy. Evidence, Prima facie evidence.

The opinion of the court was delivered by: Braucher

At the trial of a defendant charged with obtaining money by means of checks drawn against insufficient funds, evidence that the defendant was informed by his brother, who was the payee, that the checks had been dishonored and a stipulation that "payment was not made within the forty-eight hour statutory requirement" constituted prima facie evidence of the defendant's intent to defraud and of his knowledge of insufficient funds within the meaning of G. L. c. 266, § 37, even though it appeared the defendant was not notified directly by the bank that the checks had been returned for insufficient funds. [841-842]

Evidence that a defendant who altered a check and obtained money thereby knew that the drawer had insufficient funds for payment of the check was sufficient to warrant an inference of his intent to defraud. [842]

Defendants indicted for violations under G. L. c. 266, § 37, were entitled to a dismissal of the indictments on the ground of variance between the allegations and proof where the indictments charged the defendants with drawing or altering checks upon the Union Market National Bank and the proof was that the checks were drawn on the Coolidge Bank and Trust Company. [842-844]

Each of the defendants was convicted on two counts of larceny under G. L. c. 266, § 37, *fn2 for obtaining money by means of checks drawn against insufficient funds. They appealed under G. L. c. 278, §§ 33A-33G, and we transferred the case to this court on our own motion. We hold that there was a fatal variance between the indictments and the proof, and reverse the convictions. The reversal may not bar reindictment for the same crimes. G. L. c. 263, § 8. We therefore decide the question, fully argued, whether the evidence would warrant conviction under proper indictments.

Each indictment contained two counts. The first alleged that the defendant, on August 29, 1974, "with intent to defraud, did make, draw, utter or deliver a check for payment of money upon the Union Market National Bank with knowledge that the maker or drawer has not sufficient funds or credit at such bank for the payment of said check and thereby did obtain money, in the amount of Forty-Six Hundred dollars," property of the Union Market National Bank. In each indictment the second count was similar, except that the date was August 30, 1974, and the amount was $3,700.

Evidence of the following facts was substantially undisputed. The defendants, Charles and Ronald Ohanian, were brothers who were engaged in business together. On August 29, 1974, with Charles's consent, Ronald signed Charles's name as drawer on a check for $4,600 drawn on the Coolidge Bank and Trust Company (Coolidge Bank), payable to Ronald; and Ronald cashed it at the Union Market National Bank (Union Market) the same day. The $3,700 check was drawn by Charles on the Coolidge Bank on August 26, 1974, postdated August 30, 1974, payable to Ronald; Charles mailed it to Ronald, and Ronald cashed it at the Union Market on August 30, 1974.

Both defendants knew before the checks were cashed that the funds in Charles's account at the Coolidge Bank were insufficient to cover either check. There was "no credit line attached to the account." Both checks were dishonored, and the defendants stipulated "that payment was not made within the forty-eight hour statutory requirement." Apart from the stipulation, there was evidence that an officer of Union Market notified Ronald by telephone that the checks had been dishonored, that Charles was informed of their dishonor by his brother within a short period of time, and that the amount of the checks was eventually paid in full. The final payment of $1,700 was made March 9, 1976.

From the prosecutor's opening statement to the jury, it appeared that both checks were drawn on the Coolidge Bank and were cashed at the Union Market. The defendants thereupon moved to dismiss the indictments; the motion was denied, and they excepted. The proof was in accord with the opening, and the defendants moved for directed verdicts at the close of the Commonwealth's case. The Judge reserved decision, and denied the motions after both sides had rested. On conviction, each defendant received two concurrent suspended sentences of six months in a house of correction and was placed on probation for two years.

1. Prima facie evidence. "As against the maker or drawer thereof," the drawing of a check, "payment of which is refused by the drawee," is "prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or credit with, such bank," unless the drawer pays the holder "within two days after receiving notice that such check . . . has not been paid by the drawee." G. L. c. 266, § 37. The defendants now contend that Charles was never notified of the return of the checks for insufficient funds, and hence that there was no "prima facie evidence." We think this contention is barred by their stipulation "that payment was not made within the forty-eight hour statutory requirement." Moreover, we think that Charles received "notice" when he was informed by his brother that the checks had been dishonored. Charles was the drawer of both checks. As against him, therefore, there was "prima facie evidence" of the essential intent and knowledge. See Fuller v. Home Indem. Co., 318 Mass. 37, 40-41 (1945).

Ronald signed his brother's name as drawer of the $4,600 check, and we think he was sufficiently the "drawer" to bring into play the statutory rule of "prima facie evidence" as to that check. But he was in no sense "the maker or drawer" of the $3,700 check. We must therefore consider, as to that check, the Commonwealth's contention that there was ...


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