On September 16, 1981, the defendant, Richard Dunnington, was convicted of larceny by check under G. L. c. 266, § 37, at a bench trial in the Wareham District Court. The defendant exercised his right to a de nova trial and on March 19, 1982, a jury of six found him guilty as charged. The defendant appealed to the Appeals Court and we transferred the case to this court on our own motion.
The defendant appeals his conviction on four grounds: (1) the denial of his motion for a required finding of not guilty under Mass. R. Crim. P. 25,
Since the defendant challenges the sufficiency of the Commonwealth’s evidence, we shall review the facts introduced by the Commonwealth in the light most favorable to the Commonwealth. On October 4, 1980, the defendant, an employee of Dunnington Marine, Inc. (Dunnington Marine), represented himself as president of Dunnington Marine and placed an order with North American Fiberglass Corporation of Greenville, North Carolina (North American), for the purchase of five boats. The five boats were delivered to Dunnington Marine on November 17,1980.
The check was presented for payment at the drawee bank on November 26, 1980, and returned for insufficient funds. On November 28, 1980, Edwin Parsons, the New England sales representative for North American, informed the defendant by telephone, that the “check didn’t work.” The defendant promised he would deposit sufficient money to cоver the check by the end of the following week.
At a scheduled meeting on December 1, 1980, Parsons again informed the defendant that the “check didn’t work.” The defendant again promised Parsons that he would cover the check by the end of the week. During this meeting a telephone call was made to the president of North American who told Parsons, “Well, under the circumstances, I guess we’ll just have to wait until the end of the week until he puts the money in the bank.”
Subsequently, North American retained Attorney George Decas to represent it in this matter. During December, 1980, Mr. Decas mailed two letters to the defendant informing him of the check’s dishonor. The first he sent by certified mail and the second he sent through regular mail. The certified letter was returned uncollected and unclaimed, while the other was never returned. On January 7, 1981, Mr. Decas mailed a certified letter to the defendant which George Dunnington, the defendant’s father, signed for and received. Again on February 4, 1981, Mr. Decas presented the defendant’s attorney with notice of dishonor at the show cause hearing concerning the present action. The check has never been honored.
1.
Motion for required finding of not guilty.
The defendant argues that the Commonwealth failed to prove each element of the offense of larceny by сheck under G. L. c. 266, § 37. In particular he asserts that the Commonwealth’s evidence failed to establish the requisite intent to defraud. The defendant moved for a required finding of not guilty at the close of the Commonwealth’s evidence and
We affirm the denial of these motions. On this issue we consider only the evidence introduced up to the time the Commonwealth rested its case and the defendant first filed his motion for a required finding of not guilty.
2
See G. L. c. 278, § 11;
Commonwealth
v.
Kelley,
General Laws c. 266, § 37, provides that “[a]s against the . . . drawer” of a dishonored check, the prosecution can establish a prima facie casе of intent to defraud and knowledge of insufficient funds by showing that the drawer failed to pay the holder within two days after notice of dishonor. The Commonwealth’s evidence established such a prima facie case.
The jury could infer notice of dishonor from numerous occurrences. First, Parsons testified that on November 28 and December 1, 1980, he informed the defendant that the
The defendant argues that the prima facie rule cannot be applied in the present case because he was not the actual drawer of the check. Wе do not agree. The defendant ordered his secretary to make out the check. This act was sufficient to render him the “drawer” for purposes of prima facie evidence. Cf. Commonwealth v. Ohanian, supra (defendant’s signing of codefendant’s name rendered him the “drawer” fоr purpose of the statutory rule).
In addition to the statutory prima facie case, the evidence revealed that on November 17, 1980, when the check was issued, the corporate bank account was overdrawn by $58.75. Since the defendant reрresented himself as president of the corporation and engaged actively in the purchase of inventory, the jury could infer that he had knowledge of this fact. Furthermore, the jury could draw an inference of intent to defraud from the defendant’s unfulfilled аnd repeated promises to deposit funds in the corporate account by the end of the first week in December, 1980.
2.
Motion to amend complaint.
Prior to commencement of the trial de nova, the Commonwealth moved to amend the date of the offense chargеd on the complaint from November 7, 1980, to November 17, 1980, pursuant to Mass. R. Crim. P. 4 (d),
The question is whether the change of the date of the offense was a material change in the elements of the crime.
Commonwealth
v.
Ohanian, supra
at 843.
Commonwealth
v.
Jervis,
This case differs from Commonwealth v. Ohanian, supra, where the essential elements of the crime were not correctly stated. Id. at 843. The indictments in Ohanian alleged that the defendants knew that the drawer had insufficient funds to pay the checks at a bank other than the drawee bank. The indictments, in effect, failed to state an offense under G. L. c. 266, § 37, which deals with knowledge of insufficient funds at the drawee bank. Therefore, the court reversed the denial of the defendants’ motions to dismiss the indictments and for direсted verdicts on the ground of variance between the allegations and proof, because the misnomer was material. G. L. c. 277, § 35. Id.
In the present case, the Commonwealth’s amendment of the date merely changed the form of the complaint. All thе elements of the crime remained in place. Moreover, the defendant failed to demonstrate a substantial likelihood that he was prejudiced in his defense. Mass. R. Crim. P. 4 (d). The record reveals that at all times the defendant was fully aware that the complaint concerned the issuance of a check on November 17, 1980. Clearly, if the defendant were convicted of larceny by check on November 7, 1980, in regard to the same circumstances, the Commonwealth would be barred from prosеcuting the defendant for the same offense committed on November 17, 1980. See
Commonwealth
v.
Snow,
3.
Motion for anew trial.
After the verdict was entered, the defendant filed a motion for a new trial alleging that the jurors considered evidence not admitted at the trial. The defendant filed with this motion a court officer’s affidavit that he engaged in a postverdict conversation with a juror. Allegedly the juror made three statements indicating possible extraneous influences.
3
The trial judge asked the
In Massachusetts, juror testimony is admissible at a hearing to impeach a jury verdict, but only to establish the existence of improper extraneous influences on the jury. This testimony is not admissible to demonstrate the effect that the extraneous matter had upon the juror’s thought process.
Commonwealth
v.
Fidler,
The defendant at such a hearing bears the burden of demonstrating that the jurors were in fact exрosed to extraneous matter. Once the judge finds that extraneous matter was introduced, the Commonwealth must prove beyond a reasonable doubt that the defendant was not prejudiced by the improper influence. Commonwealth v. Fidler, supra at 201.
We would have been matеrially aided if the judge had complied with the requirement of Mass. R. Crim. P. 30(b),
4.
Claim of double jeopardy.
The defendant was initially tried in the District Court at a bench trial and convicted. He exercised his right to a de nova trial and was again convicted. He now asserts that the original conviction should be reversed on the ground of legally insufficiеnt evidence. Assuming the validity of this claim, he also argues that his trial de nova placed him in double jeopardy under the holding of
Burks
v.
United States,
While we are aware of the pendency of a case which highlights this issue in the United States Supreme Court,
Lydon
v.
Boston Mun. Court,
Judgment affirmed.
Notes
The Commonwealth points out that the defendant did not renew his motion for a required finding of not guilty at the close of all the evidence. However, in order to raise the propriety of the trial judge’s actions, the defendant is not required to renew his motion at the conclusion of his case. Mass. R. Crim. P. 25 (a),
The Commonwealth’s position as to proof did not deteriorate between the time the Commonwealth rested and the close of all the evidence so as to necessitate rеview of all the evidence. See Commonwealth v. Kelley, supra at 150 n.1. In fact the defendant’s evidence aids the Commonwealth’s case, because the defendant admitted both knowledge of insufficient funds and notice of dishonor.
These statements were as follows: (1) “His father owns five drug stores and could have paid his way out of this if he wanted to”; (2) “He had bounced four checks in the same month, — how do we know if there
Evidence of prior overdrafts was submitted to the jury in a bank statement introduced by the Commonwealth. The defendant did not object to the document’s introduction in evidence, and, therefore, he will not be heard to complain on appeal.
Commonwealth
v.
Baptiste,
The defendant bears the burden of producing a satisfactory record. See Mass. R. A. P. 18 (a), as amended,