Jacobs, Bigelow and Jayne. The opinion of the court was delivered by Jacobs, S.j.a.d.
The defendant Morton Kapelsohn appeals from his conviction in the Essex County Court of the issuance of a check with intent to defraud in violation of R.S. 2:134-17.
The defendants Harry Gordon and Morton Kapelsohn, trading as Universal Construction and Engineering Co., were engaged in constructing a building for Jack K. Friedenreich. As the work progressed they received payments on account although Friedenreich withheld 15 per cent, as he was authorized
under the building contract, pending completion. On December 24, 1947, Gordon and Kapelsohn drew a check payable to Gordon in the sum of $590 on their account in the Hillside National Bank. The check was endorsed by Gordon who asked Friedenreich to cash it so that payroll could be met. Friedenreich endorsed the check and it was cashed at the Bank of Nutley where Friedenreich maintained an account. The check was returned for insufficient funds, was duly protested, and certificate of protest of nonpayment was executed.
Thereafter Friedenreich spoke to Gordon about the matter and was told, according to Friedenreich's testimony, "not to worry about it, but to please re-deposit it." However, the check was not deposited but was retained by Friedenreich. Gordon and Kapelsohn continued construction of the building and received further payments from Friedenreich. They testified that in February, 1948, they received a payment of $1,700 of which approximately $1,100 went to mason and plumbing contractors and $600 to Friedenreich in satisfaction of the check and incidental charges. Friedenreich denied that he had ever received payment of the check and his architect testified that although in February he presented a certificate for payment to Gordon and Kapelsohn in the sum of $1,100 he did not present any certificate in the sum of $1,700.
Both Gordon and Kapelsohn testified and denied any intent to defraud. Kapelsohn pointed out that on December 24, 1947, he had deposited slightly less than $800 in the account at the Hillside National Bank and that although he knew there were outstanding checks he thought "there would be more than sufficient funds" to pay the check for $590. In fact, the actual deficit on December 24, 1947, was less than $11, the bank records disclosing deposits on December 23rd aggregating $1,800, deposits on December 24th aggregating at least $795, and a balance of $579.42 at the close of December 24th.
Motions for judgment of acquittal were denied and thereafter the jury was charged. In the course of the charge the
court related the terms of R.S. 2:134-17 which provide that any person who delivers a check with intent to defraud, knowing that he has no funds or insufficient funds, shall be guilty of a misdemeanor. Reference was likewise made to the terms of R.S. 2:134-18 which provide that the delivery of a check as stated in R.S. 2:134-17 shall be " prima facie evidence of intent to defraud" and that the certificate of protest of nonpayment "shall be presumptive evidence" that there were no funds or insufficient funds and that the maker of the check had knowledge that there were no funds or insufficient funds in the bank. The court did not define the statutory presumption or state that it could be rebutted by evidence in the cause. Cf. State v. Parsons , 6 N.J. Misc. 76, 78 (Sup. Ct. 1928); affirmed, 105 N.J.L. 253 (E. & A. 1928). Counsel for the defendants objected to the "charge as to the statute and the failure of the court to charge that it is a mere presumption of guilt and can be overcome by the evidence as adduced in the cause." The charge was not supplemented by the court and the jury found both defendants guilty. Kapelsohn alone has appealed.
The evidence in the cause having been presented fully on behalf of the State and the defendants, the controverted issue for the jury's determination thereon was whether the defendants knew that there were insufficient funds and intended to defraud when they delivered their check; if the State had not carried its burden of convincing the jury beyond reasonable doubt on that issue the defendants were entitled to acquittal. Cf. State v. Giordano , 121 N.J.L. 469 (Sup. Ct. 1939). We are satisfied, from our reading of the charge in its entirety, that this determinative issue was not adequately submitted to the jury which may well have been misled into giving improper weight to the presumption in R.S. 2:134-18. Although the statutory presumption was referred to twice in the charge, nothing whatever was said as to its meaning; nor was the jury directly instructed that no conviction could be returned unless it was satisfied beyond reasonable doubt that the defendants issued the check with
intent to defraud, knowing that there were insufficient funds in their account. Cf. Morgan, Instructing the Jury Upon Presumptions and Burden of Proof , 47 Harv. L. Rev. 59, 63, 70 (1933). We incline to the view that when the case was submitted to the jury the statutory presumption, apart from its underlying inference as a matter of reasoning (see Meltzer v. Division of Tax Appeals , 134 N.J.L. 510, 512 (Sup. Ct. 1946)), was no longer of weight and need not have been brought to the jury's attention. See 1 Wharton's, Criminal Evidence (11 th Ed. 1935), p. 80. Assuming, however, that the court was at liberty to refer to it in its charge, it seems to us that, ...