2018 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 36 - Worthless Checks
Section 30-36-7 - Intent to defraud; how established.
In the prosecution of offenses under the Worthless Check Act, the following rules of evidence shall govern:
A. if the maker or drawer of a check, payment of which is refused by the bank or depository upon which it is drawn because of no account in the name of the maker or drawer in the bank, proof of the fact that the maker or drawer had no account in the bank or depository upon which the check is drawn shall be prima facie evidence of an intent to defraud and of knowledge of insufficient funds in or credit with the bank or depository with which to pay the draft;
B. if the maker or drawer of a check, payment of which is refused by the bank or depository upon which it is drawn because of insufficient funds or credit in the account of the maker or drawer in the bank or depository, fails, within three business days after notice to him that the check was not honored by the bank or depository, to pay the check in full, together with any protest fees or costs thereon, such failure shall constitute prima facie evidence of a knowledge of the insufficiency of funds in the bank or depository at the time of the making or drawing of the check and of an intent to defraud.
History: 1953 Comp., § 40-49-7, enacted by Laws 1965, ch. 114, § 2; 1979, ch. 8, § 1.
Cross references. — For evidentiary rule regarding the use of presumptions in criminal cases, see Rule 11-302 NMRA.
Repeals and reenactments. — Laws 1965, ch. 114, § 2, repealed 40-49-7, 1953 Comp., relating to establishing intent to defraud, and enacted a new section.
Notice is not condition precedent to maintaining criminal action. — One who had been given a fraudulent check was not required to give notice provided for by former statute before filing his complaint to have the drawer prosecuted. Marchbanks v. Young, 1943-NMSC-024, 47 N.M. 213, 139 P.2d 594.
Prima facie presumption inapplicable without notice. — Where although defendant unquestionably had insufficient funds in his account with a bank to cover a $35.00 check, the state failed to prove that defendant had received notice of dishonor at least 10 days (now 3 days) before trial, the state could not rely on the prima facie evidence rule as to intent to defraud set forth in Subsection B of this section. State v. McKay, 1969-NMCA-009, 79 N.M. 797, 450 P.2d 435.
Prima facie intent to defraud. — Where the only evidence relative to the dishonor of a $20.00 check was that it was dishonored because defendant had no account in the bank on which it was drawn, there was prima facie intent to defraud under Subsection A. State v. McKay, 1969-NMCA-009, 79 N.M. 797, 450 P.2d 435.
Intent to defraud. — Evidence that defendant entered store and after furnishing identification cashed $25.00 check drawn on a Texas bank with which he had no account or credit was prima facie evidence of an intent to defraud under this section. State v. Lee, 1967-NMCA-017, 78 N.M. 421, 432 P.2d 265.
Effect of discharge in bankruptcy. — On its face, this act addresses the passing of worthless checks with the intent to defraud, and a defendant's prosecution for violation of such law is not precluded by filing for or obtaining a discharge in bankruptcy. State v. Muzio, 1987-NMCA-006, 105 N.M. 352, 732 P.2d 879.
Purpose of notice. — Under the language of the Worthless Check Act the purpose of notice and of the 10-day period (now 3 business days) is to make it easier for the state, upon prosecution, to prove necessary knowledge and intent; such knowledge and intent can, however, be proved without use of the statutory act if desired. 1965-66 Op. Att'y Gen. No. 65-197.
Notice is not condition precedent to maintaining criminal action. 1965-66 Op. Att'y Gen. No. 65-197.
Failure to respond to notice merely creates presumption of knowledge and fraudulent intent if a criminal proceeding is instituted. 1965-66 Op. Att'y Gen. No. 65-197.
Threat of prosecution not authorized. — The specific language of Section 30-22-6 NMSA 1978, relating to compounding a crime, controls over the more general language of the Worthless Check Act by making it a crime to include in the notice of dishonor a threat to institute criminal proceedings unless payment is made within 10 days (now 3 business days). 1965-66 Op. Att'y Gen. No. 65-197.
