State v. Mayo

175 S.E.2d 297 (1970)

STATE of North Carolina v. Ervin MAYO, Jr.

No. 702SC381.

Court of Appeals of North Carolina.

July 15, 1970.

*298 Atty. Gen. Robert Morgan, by Staff Atty. Ladson Hart, Raleigh, for the State.

Frazier T. Woolard, Washington, for appellant.

BROCK, Judge.

Appellant contends the trial court erred in denying his motion for a directed verdict of acquittal made at the close of the State's evidence and renewed at the close of all the evidence for the reason that the State failed to carry the burden of proving the various vital elements of the offense charged.

*299 The bill of indictment charges that defendant "did not have sufficient funds on deposit in and credit with" the drawee bank with which to pay said check upon presentation. Defendant concedes the indictment is proper in form, but contends the State's evidence is not sufficient to carry the burden of proving that defendant had no credit with the drawee bank with which to pay the check on presentation and that therefore a verdict of acquittal should have been directed for defendant. We find no merit in this contention.

It is well established that in passing upon a motion for nonsuit in a criminal case, the court must consider the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference which may be legitimately drawn therefrom. And, if when so considered, there is substantial evidence, whether direct, circumstantial, or both, of all material elements of the offense charged, then the motion for nonsuit must be denied and it is then for the jury to determine whether the evidence establishes guilt beyond a reasonable doubt. State v. Locklear, 7 N.C.App. 493, 172 S.E.2d 924.

In the present case there was no affirmative testimony that the defendant had no credit with the drawee bank with which to pay the check upon presentation. However, the evidence does show that, when the check was presented to the drawee bank, payment was refused; that on 11 March 1970 defendant had $3.29 on deposit in this account; that until the account was closed there were never sufficient funds in the account to honor the check; and that defendant knew the check should not be in circulation because it was "no good".

From this evidence a legitimate inference may be reasonably drawn that had defendant had sufficient funds on deposit or a credit arrangement with the drawee bank the check would have been paid upon presentment. Indeed, on the evidence in this case it would strain credulity to find otherwise. There was ample evidence to support the jury verdict and there was no error in overruling defendant's motions for a directed verdict of acquittal.

No Error.

BRITT and HEDRICK, JJ., concur.