Before Bridges, C.j., Coleman, And Diaz, JJ.
The opinion of the court was delivered by: Coleman, J
PATRICK HIGGINS A/K/A PATRICK J. HIGGINS, APPELLANT A/K/A PATRICK JOSEPH HIGGINS v. STATE OF MISSISSIPPI, APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND
MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 12/19/94
TRIAL JUDGE: HON. ISADORE W. PATRICK, JR.
COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: GUILTY OF THREE COUNTS OF FELONY
BAD CHECK: SENTENCED TO 3 YEARS
ON EACH COUNT TO BE SERVED CONSECUTIVELY TO THE OTHER COUNTS FOR A TOTAL OF 9 YEARS, SUSPENDED UPON COMPLETION OF PROGRAM AT JACKSON COUNTY RESTITUTION CENTER
DISPOSITION REVERSED AND APPELLANT DISCHARGED -3/10/98
In the Circuit Court of Warren County, a jury found the appellant, Patrick Higgins, guilty of three counts of issuing and delivering "bad checks" in violation of Section 97-19-55 of the Mississippi Code of 1972.*fn1 Because the amounts of each of the three checks exceeded $100, the trial Judge sentenced Higgins to serve a term of three years on each count pursuant to the provisions of Section 97-19-67 of the Mississippi Code of 1972.*fn2 The trial Judge ordered that Higgins serve these three sentences consecutively for a total of nine years, "suspended upon his completion of the program at the Jackson County Restitution Center." The court also levied a $1000 fine for each count of felony bad check for a total of $3000, but it suspended Higgins's payment of these fines on the condition that he pay Southern Lock & Key the sum of $605.05, which represented the total of other checks drawn on the account of Delta Glass Repair, Inc., in what was then the First National Bank of Vicksburg, but is now Trustmark National Bank. As a part of Higgins's punishment, the trial court ordered him to make full restitution to Southern Lock and Supply Company. We reverse and render the trial court's judgment and sentencing order because we find that the evidence was insufficient to support the jury's verdict of Higgins's guilt of those three counts.
We recite the facts in the light most favorable to the evidence which the State adduced for the jury's consideration. Southern Lock and Supply Company (Southern), a wholesale distributor of security products such as locks, keys, and safe door closers, is located in Pinellas Park, Florida. Delta Glass Repair, Inc., (Delta) was a Mississippi corporation which was domiciled in Vicksburg, Mississippi. The appellant, Patrick Higgins, served as president and secretary of Delta, and Lynn Higgins, to whom Higgins was once married, served as Delta's treasurer. Southern maintained an open account for Delta. Delta purchased merchandise from Southern on its account, but when Delta experienced difficulty in paying its account, Southern began to send merchandise by United Parcel Service (UPS) cash on delivery. The address to which Southern sent each of Delta's orders was 106 Linda Drive, Vicksburg, Mississippi 39180, which was the address of Higgins's residence. UPS would return to Southern by mail Delta's checks which its delivery persons received when they made C.O.D. deliveries at that address. Delta maintained a checking account in First National Bank of Vicksburg (FNBV), now Trustmark National Bank. Southern received Delta's check no.15154 for $434.01, dated August 20,1993, in payment of an order which it had sent Delta via UPS, but FNBV returned this check to Southern with "ACCOUNT CLOSED" stamped on its front. Southern next received Delta's check no.15155 for $1,326.21, dated August 26, 1993, in payment of an order which it had sent Delta via UPS, but again FNBV returned this check to Southern with "ACCOUNT CLOSED" stamped on its front. Finally, Southern received Delta's check no.15156 for $1,313.84, dated August 27, 1993, in payment of an order which it had sent Delta via UPS, but for the third time, FNBV returned this check to Southern with "ACCOUNT CLOSED" stamped on its front.
Joan Hart, Southern's credit manager in Pinellas Park, Florida, called Higgins about these checks which FNBV had returned, and Higgins told her that she could re-deposit them. When the checks were again returned by FNBV, Higgins told Hart that he would send a cashier's check to cover them. Higgins sent one cashier's check in the amount of $900 to Southern, but this amount paid for only two checks which FNBV returned and left a balance of $16.82. Southern sent Delta a check in the amount of $16.82 to refund this balance. The three bad checks for which Higgins was indicted did not include these two checks which were paid from the proceeds of this $900 cashier's check.
After the remaining three checks were not paid, Ms. Hart contacted the district attorney's office in Vicksburg and talked with Andrea Hunter in the bad check division of that office. Ms. Hunter sent Ms. Hart some forms entitled "15 Day Legal Notice Letters." Ms. Hart completed three of these forms, one for each of the three checks which FNBV had returned, and mailed them, certified mail, return receipt requested to "Delta Glass Repair, Inc., P. 0. Box 820651, Vicksburg, MS. 39182." These three letters, which were addressed to "Delta Glass Repair, Inc., 106 Linda Dr., Vicksburg, MS 39180,"*fn3 advised the recipient that "you have fifteen (15) days from receipt of this notice to tender payment of the full amount of such check.... Unless this amount is paid in rill within the time specified above, the holder may assume that you delivered the instrument with intent to defraud and may turn over the dishonored instrument... to the proper authorities for criminal prosecution." Section 97-19-57 of the Mississippi Code of 1972 requires that this notice be delivered to the accused prior to initiating criminal charges against the maker or drawer of the bad check. Southern received the return receipt for the delivery to Delta Glass Repair, Inc., which indicated that the letters had been delivered on September 28, 1993. The signature on the return receipt was hardly a scrawl, and the State made no effort to identify it as that of Higgins.
After Southern received the return receipt, Ms. Hart received a telephone call from Higgins, who offered to return some merchandise to trade for "some of the money of the checks," but Ms. Hart declined Higgins's offer because she "would have no way of knowing" whether the merchandise had come from Southern because she had never seen it. Ms. Hart received no further response from Higgins, so she notified Andrea Hunter with the district attorney's office that the three checks for which Higgins was later indicted had not been paid.
After several conversations with Higgins or his attorney, Ms. Hunter arranged for a warrant to issue for Higgins's arrest on the three checks for which the grand jury subsequently indicted him in Warren County. Higgins's trial ensued on the three-count indictment. The State called three witnesses, who were Joan Hart, Southern's credit manager; James E. Stirgus, Jr., Assistant Vice President and Security Officer for what was FNBV but is now Trustmark Bank; and Andrea Hunter, the Victims' Assistance Coordinator for the office of the district attorney, who also worked in the worthless check unit of that office. Ms. Hart's testimony on direct examination by the State was consistent with our recitation of the facts.
Of interest to this Court is the following cross-examination by Higgins:*fn4
Q. Have you ever seen the defendant before today in your life?
A. This is my first time.
Q. And do you have any knowledge as to who signed the checks?
Q. Do you have any knowledge as to who signed the green return receipt post card?
Q. And you have no personal knowledge of who signed that check?
Q. What is my name? A. Patrick Higgins. Q. Do you have any personal knowledge of that, other than I'm the defendant in this action?
Q. So you don't know if I'm Patrick Higgins, Sr., or Patrick Higgins, Jr.?
Q. Or even if I'm Patrick Higgins?
Q. You didn't see me write ...