Opinion
No. 43186.
March 9, 1953.
APPEAL FROM CIRCUIT COURT CRAWFORD COUNTY.
Tyree C. Derrick and Karl E. Holderle, Jr., St. Louis, for the Appeal.
J. E. Taylor, Atty. Gen., and Aubrey R. Hammett, Jr., Asst. Atty. Gen., for respondent.
Appellant, as defendant and so referred to herein, charged with violating Section 561.450 RSMo 1949, V.A.M.S., was convicted, and has appealed from a judgment sentencing him to two years in the penitentiary. Among other things, he contends that the trial court erred in failing to direct a verdict of acquittal at the close of all the evidence. This contention must be sustained.
Virgie Earls White, the prosecuting witness, who lived at Cuba, Missouri, became acquainted with defendant in November or December, 1948, and at that time and until the fall of 1949 (prior and subsequent to the transaction here involved) went about with him socially. Their possible marriage became a matter of importance to prosecutrix and, probably in the spring of 1949, she purchased a wedding ring for defendant. She displayed it to various persons and kept it in anticipation of being married. She had discovered, probably in December 1948, that defendant was married but nevertheless continued her association with him. Defendant at that time resided in St. Louis. Apparently some time in March 1949 she loaned defendant $500 with which to begin a used car business in partnership with one Melzo Harridge under the firm name of Leadwood Motor Company; prior and subsequent thereto she loaned defendant sums of money on two or three occasions. Defendant began business in Leadwood in partnership with Hartridge under the firm name of Leadwood Motor Company. Prosecutrix had full knowledge of this partnership and that its business was the purchase and sale of used cars. Defendant had sold a car for prosecutrix a short time prior to April 1949, which transaction was apparently satisfactory to all parties involved. Prosecutrix shortly thereafter obtained a 1949 Chevrolet convertible coupe. Early in April she and defendant talked about selling it. Defendant took the automobile into his possession for the purpose of demonstrating it to prospective buyers. It had been agreed that prosecutrix was to receive $2,050 from the proceeds of any sale and defendant was to have as a commission all in excess of that amount.
On April 25, 1949, defendant appeared in the drugstore which prosecutrix operated in Cuba and advised that he had found a purchaser; that he would give prosecutrix a check for $2,000; that if she didn't need the additional $50 right then, he would give her the other $50 within a few days. Prosecutrix consented to this arrangement. Defendant then gave her a check for $2,000 and received title to her automobile signed in blank. The check was in words and figures as follows:
"Leadwood Motor Co. Used Car Dealers No. 17 Leadwood, Mo. 4-25 1949 Pay To The Order Of Virgie Earls $2000/00 no two thousand and 100 Dollars For 1949 Chev. Con. Coupe
To Bank Of Leadwood By Edw. H. Robinson. (Signed)" 80-1058 Leadwood, Missouri
No oral representations were made concerning this check. Prosecutrix testified that she relied upon the check's being good and for that reason delivered the title to defendant. In a few days defendant again saw prosecutrix and gave her a check for the additional $50; he expressed the hope that she hadn't needed the money in the meantime. She replied, "No, I still have the $2,000 check, I haven't cashed that, because I am holding that to pay for my new car when it gets in." Prosecutrix did not deposit the check until May 23, 1949; her new car arrived May 24. The check was not honored at that time and had not been paid to the date of trial. It does not appear that the check was presented for payment other than on May 23. On the day her bank notified her that the check had not been honored, defendant said to her, "You are going to be awful mad, * * * That $2,000 check I gave you, my bank turned it down today." She asked, "For what?" Defendant replied, "Well, we just didn't have the funds in there to take care of it."
The evidence further showed that $800 had been paid by defendant to prosecutrix subsequent to this transaction. On cross-examination prosecutrix said $700 was paid to her to assist her in paying for her new car. On redirect examination, prosecutrix explained that the $800, including the $700, was in repayment of the loans previously made by her to defendant.
The cashier of the Bank of Leadwood, the bank on which the check in question was drawn, testified that Leadwood Motor Company had an account in that bank; that it had an account in April and May, 1949; that Leadwood Motor Company was a partnership consisting of defendant and Hartridge; that the partnership conducted a used car business; that either defendant or Hartridge were authorized to sign checks against the partnership account. The witness identified the ledger account of the Leadwood Motor Company for the months of April and May, 1949. This ledger account was marked as a state's exhibit. The exhibit was not offered in evidence. There was no testimony as to the amount of money in the account on any date in question. The witness also identified the "ship" which the witness as cashier of the Bank of Leadwood had attached to the check. The "slip" was marked as an exhibit. It was not offered in evidence.
Defendant admitted, through his counsel, that during April and May, 1949, he, Edward H. Robinson, did not have an individual account in the Bank of Leadwood, i. e., any account other than that of Leadwood Motor Company.
This was the evidence adduced by the state and, while defendant's evidence put a different complexion upon the entire transaction, it is unnecessary to state defendant's theory. Suffice to say that defendant's evidence in no way aided the state in the proof of any essential matter.
The amended information upon which defendant was tried was: "1. Comes now, G. C. Beckham, Prosecuting Attorney within and for the County of Crawford and State of Missouri, and upon his official oath informs the court that in the County of Crawford and State of Missouri on or about the 25th day of April, 1949, one Edw. H. Robinson, feloniously and fraudulently, and with unlawful and felonious intent to cheat and defraud, did then and there obtain from one Virgie Earls a certain valuable chattel, to-wit: A 1949 Model Chevrolet Automobile of the value of $2,000.00; and of the goods and chattels of the said Virgie Earls, by the use of certain trick, deception and instrument, to-wit: A bogus check, drawn with intent to cheat and defraud, on a bank in which the said Edw. H. Robinson knew he had no funds, and which said check he, the said Edw. H. Robinson, did then and there feloniously and fraudulently represent to the said Virgie Earls was of the value of $2,000.00; that he had on deposit with the Bank of Leadwood, Leadwood, Missouri the money to pay said check; and that said check was in words and figures as follows:
Leadwood Motor Co. Used Car Dealers No. 17 Leadwood, Mo. 4-25 1949 Pay To The Order Of Virgie Earls $2000/00 no two thousand and 100 Dollars For 1949 Chev. Con. Coupe
To Bank Of Leadwood 80-1058 Leadwood, Missouri By Edw. H. Robinson (Signed)
Know your Endorser — Require Identification,
and the said Virgie Earls relying upon and confiding in the truth of said representations, and by reason thereof was induced to part with the above mentioned automobile, and by means of said bogus check the said Edw. H. Robinson did then and there unlawfully, fraudulently and feloniously obtain and receive from the said Virgie Earls said automobile, of the value of $2,000.00, of the goods and chattels of the said Virgie Earls, with the unlawful and felonious intent then and there to cheat and defraud the said Virgie Earls of the same; when in truth and in fact the representations so made by the said Edw. H. Robinson concerning said check were false and untrue, and in truth and in fact he did not have on deposit with the Leadwood Bank of Leadwood, Missouri, money to pay said check, and that in fact said check was never paid or honored by said bank, all of which was done by the said Edw. H. Robinson with the unlawful and felonious intent of cheating and defrauding the said Vingle Earls, and against the peace and dignity of the State."
Section 561.450 details different methods for obtaining money or property with intent to cheat and defraud, and the use of each method is made an offense. Obtaining money or property by the use of a bogus check is prescribed against. Likewise, obtaining money by means of a check on a bank in which the drawer of the check knows he has no funds is also detailed as one of the methods or devices which, assuming proof of the essential elements, is made a crime. "Only one method need be charged. But the State must prove the particular method to cheat and defraud which is prohibited by statute and which is charged in the information." State v. Scott, Mo.Sup., 230 S.W.2d 764, 767.
We pointed out in State v. Bird, Mo.Sup., 242 S.W.2d 576, 577 (2), that the legislature has distinguished between a genuine check drawn on a bank in which the drawer knows he has no funds and a false or bogus check, i. e., one drawn on a non-existent bank, or by or payable to a fictitious person. And we held in the Bird case that a verdict finding a defendant guilty of obtaining money and goods by means of a bogus check was not responsive to the issues and was fatally defective in a case in which defendant had been charged with obtaining money and property by means of a check drawn by him on a bank in which he knew he had no funds.
The view we take makes it unnecessary to determine whether the amended information charges defendant with using only a "bogus check", or with using only a check "on a bank in which the drawer of the check knows he has no funds", or with using both methods. Nor need we determine, assuming two separate offenses are charged in one count, whether, despite the duplicity of the information, such information is sufficient after verdict. For our purposes, we shall assume that the information may be construed as charging both methods — "bogus check" and "no funds"; and we shall further assume that proof of either method would be sufficient to sustain the verdict.
In so far as the information charges defendant with obtaining the automobile by means of a bogus check, not only does the state's proof wholly fail to support the charge, but affirmatively shows that the check in question was not a bogus check, that is, "one drawn on a non-existent bank or by or payable to a fictitious person." State v. Bird, supra, 242 S.W.2d 577[2].
Likewise the state's evidence is wholly insufficient to support the charge of the use of a check on a bank in which defendant knew he had no funds. The record shows that the state proceeded upon the theory at trial, and in effect argues here, that the check set forth in the information and introduced in evidence may be considered to be a check issued by defendant on his individual account as opposed to one drawn on the partnership account; that because defendant admitted that he did not have an account or funds in the Bank of Leadwood during April or May, 1949, in his individual name, as distinguished from the Leadwood Motor Company partnership account, such admission supported the averments in the information. We do not understand how such a contention may be seriously urged.
The state charged that defendant gave a particular check to prosecutrix. The particular check was set forth in the information and was offered in evidence. It was obviously drawn on whatever account Leadwood Motor Company had in the Bank of Leadwood. It was signed by defendant, who was a partner in Leadwood Motor Company, and who had authority to sign. The check would be honored or not honored at a given time depending upon the amount of money in the Leadwood Motor Company account. The fact that defendant had no individual account in the name of "Edward H. Robinson" in the Bank of Leadwood was totally irrelevant. The state's proof showed that Robinson had a right to sign the very check he did sign on the very account which existed in the very bank on which it was drawn and that this was the check delivered to prosecutrix. The prosecutrix was in no way misled as to the nature of the check received. She knew that defendant and his partner operated Leadwood Motor Company and knew that such was a used car business. She had no reason to believe, nor did her testimony even intimate that she believed, that the check purported to be drawn on any account other than the partnership account of Leadwood Motor Company.
As noted, there was no proof as to the amount of money in the Leadwood Motor Company account, either on the date the check was issued, the date it was presented for payment, or on any of the dates during the intervening period between issuance and presentation (27 days). The state's evidence did show that Leadwood Motor Company had an account in the Bank of Leadwood and although, as noted, the ledger account was marked as an exhibit, it was not offered in evidence. And, as noted, the slip which the witness (cashier) had attached to the check in question when it was not honored was also identified and marked as an exhibit but not offered in evidence.
The only reasonable inference from the testimony and lack of testimony under the circumstances indicated, is that there were insufficient funds in the Leadwood Motor Company account to pay the check on either the day it was issued or the day it was presented. Section 561.460 RSMo 1949, V.A.M.S., makes it a misdemeanor to draw or deliver, with intent to defraud, a a check upon a bank wherein the negotiator of the check knows that the maker or drawer has not sufficient funds for the payment of such check. It is clear, therefore, that proof of the insufficiency of funds in the Leadwood Motor Company account did not support a charge under Section 561.450 making it a felony to obtain property by means of a check "on a bank in which the drawer of the check knows he has no funds". See State v. Richman, 347 Mo. 595, 601[2], 148 S.W.2d 796, 799 [2, 3]; State v. Griggs, Mo.Sup., 236 S.W.2d 588, 591.
The state's evidence was wholly insufficient to prove the guilt of defendant, either of obtaining property by a bogus check or by means of a check on a bank in which the drawer knows he has no funds. The trial court should have directed a verdict of acquittal. It follows that the judgment is reversed and defendant discharged.
VAN OSDOL and LOZIER, CC., concur.
The foregoing opinion by COIL, C., is adopted as the opinion of the court.
All concur.