Opinion
Opinion filed March 17, 1950.
1. FALSE PRETENSES.
The statute making it an offense to obtain credit with fraudulent intent by means of a bad check covers the entire subject of obtaining money or other property by means of a check which is not paid, and is exclusive and supersedes older statutes and the common law (Code, sec. 11157).
2. FALSE PRETENSES.
In prosecution for obtaining goods under false pretenses, indictment must specify goods obtained.
3. FALSE PRETENSES.
An indictment which alleged that accused issued a certain check with fraudulent intent and obtained goods, merchandise and money and credit of the value of $25 from a certain person, which check drawee failed to pay after demand was fatally defective for failure to describe property obtained with sufficient definiteness (Code, sec. 11157).
FROM BEDFORD.NAT TIPTON, Assistant Attorney General, for the State.
E.T. NANCE and A.L. ENGLISH, both of Shelbyville, for defendant.
D.O. Seawell was indicted for allegedly obtaining property with fraudulent intent by means of a check which the drawee failed to pay after demand. The Circuit Court for Bedford County, JOHN D. WISEMAN, J., quashed the indictment, and the State of Tennessee appealed in error. The Supreme Court, GAILOR, J., held that the indictment was fatally defective for failure to describe the property with sufficient definiteness. Judgment affirmed.
This is an appeal by the State from the action of the Trial Judge in quashing an indictment under the bad check law, Code, Section 11157, the pertinent parts of which are as follows: "Any person who shall obtain, with fraudulent intent, money, or other property which may be the subject of larceny, or who shall obtain credit with like intent, by means of a check, draft, or order, of which he is the maker or drawer, which is not paid by the drawee, shall be guilty of a misdemeanor if the amount or value is sixty dollars or less; if the amount or value is more than sixty dollars he shall be guilty and punishable as in the case of larceny, of such money or other property, or of anything of value obtained on such credit, unless payment shall be made of such check, draft or order after giving three days' written notice mailed to the drawer's last known address. . . ."
Omitting the caption and surplusage, the body of the indictment under attack is as follows:
"The Grand Jurors for the State of Tennessee, duly elected, empaneled, sworn and charged to inquire for the body of the County, and State aforesaid, upon their oaths aforesaid, present, that D.O. Seawell heretofore, to wit: on the ____ day of ____, 1949, in the County aforesaid, did, knowingly, wilfully, unlawfully, feloniously, and with fraudulent intent make and issue a certain check in the words and figures as follows:
Iris Pastry Shop
Shelbyville, Tenn. Oct. 22, 1949 No. ____ First National Bank Pay to the order of Mrs. Catherine Cawthron ..................... $25/00 Twenty five no/100 .......................... Dollars For Labor D.O. Seawell And on which check obtained goods, merchandise and money and credit of the value of 25 dollars from Mrs. Catherine Cawthron which check the drawee, the said First National Bank failed to pay after demand made, the said maker or drawer not having sufficient funds on deposit or to his credit with the said drawee bank with which to pay said check when presented; and which check the said drawer or maker failed to pay after three days written notice mailed to his last known address, against the peace and dignity of the State."We think the action of the Trial Judge must be affirmed, and that his action in quashing the indictment was correct under the fifth ground of the motion to quash, which is as follows: "5th. Because the indictment does not charge what thing was obtained that was the subject of larceny."
(1) The bad check law, Code, Section 11157, supra, covers the entire subject of obtaining money or other property by means of a check which is not paid. It is exclusive and supersedes older statutes and the Common Law. Haley v. State, 156 Tenn. 85, 299 S.W. 799. Therefore, to charge validly, the offense of fraudulently obtaining money or goods by a bad check, the details of the offense defined in the foregoing Code section must be followed. The offense is only made out if it be charged that the defendant or accused obtained "with fraudulent intent, money, or other property which may be the subject of larceny". With no description of the property actually obtained, the indictment before us charges that the accused did "with fraudulent intent make and issue a certain check, and on which check obtained goods, merchandise and money and credit, etc." The indictment contains no sufficient description or definition of the property actually taken.
The case is controlled by Malkemus v. State, 174 Tenn. 547, 129 S.W.2d 201, 202, where, in the course of the opinion, at page 551, Judge Green said: "In other words, a prosecution under the bad check law is not essentially different from a prosecution for obtaining property by any other false pretense. The rule is well settled that in a prosecution for obtaining goods under false pretenses the indictment must specify the goods obtained." (Italics ours.)
Judge Green cites and approves the following from 1 Wharton Criminal Procedure, Section 643: "Some of the cases hold that the description must be made with the same particularity that would be required in an indictment for a larceny of such property; other cases are to the effect that the indictment or information may describe the property in the language used by the accused in making the false pretenses. However, the description of the property should be reasonably certain, and as particular as the case will admit of. This description need not be by the legal name of the article, and should not be in the alternative."
Because the indictment fails to describe the property with sufficient definiteness, Malkemus v. State, supra, the action of the Trial Judge in sustaining the motion to quash was correct and the judgment is affirmed.
All concur.