Opinion
No. 16440.
1946-10-15
STATE v. VICE.
M. J. Andrews, Pros. Atty., of Ironton, for plaintiff. Roy L. Henry, of Ironton, and L. D. Bruce, of Russell, Ky., for defendant.
Proceeding by the State of Ohio against Oscar L. Vice for allegedly issuing a check against insufficient funds with intent to defraud.
Defendant found not guilty.M. J. Andrews, Pros. Atty., of Ironton, for plaintiff. Roy L. Henry, of Ironton, and L. D. Bruce, of Russell, Ky., for defendant.
COLLIER, Judge.
The defendant has been indicted by a grand jury of this county for a violation of Sec. 710-176 of the General Code of Ohio, commonly called the ‘cold check law.’ The indictment charges that the defendant with intent to defraud, unlawfully and knowingly did maliciously draw, utter and deliver to one H. A. Roberts, Agent, a certain check for $177.09, well knowing that he had insufficient funds with the First National Bank of Ironton, Ohio, to pay the check. The defendant waived his right to trial by a jury, and the case has been submitted to the court upon the evidence and argument of counsel.
Sec. 710-176, G.C., upon which the indictment is based provides:
‘Any person, who, with intent to defraud, shall make or draw, or utter or deliver any check * * * upon any bank * * *, who, at the time thereof, has insufficient funds or credit with such bank * * *, shall be guilty of a felony * * * as against the maker or drawer thereof, the making, drawing, uttering or delivering of a check * * * payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud, and knowledge of insufficient funds in, or credit with, such bank.’
For the most part the evidence is not in dispute. There is some evidence offered by the defendant tending to show that the check was postdated, but it is not persuasive and raises no doubt but what the check was drawn and delivered on the same day it was dated. Therefore, we do not have the question of a postdated check to determine, but may mention is passing that there is authority in Ohio holding that a conviction on a charge of uttering a check with intent to defraud is upheld, notwithstanding,such check was postdated. Weisberg v. State, 9 O.L.A. 507. However, this seems to be out of line with the majority rule which holds that a postdated check does not come within the purview of the statute. 95 A.L.R. 496.
The testimony of the prosecuting witness, H. A. Roberts, is to the effect that the defendant appeared at the American Railway Express Co. office in Ironton, Ohio, to receive a shipment of merchandise on which there was a charge of $177.09; that the defendant advised Roberts, the agent, that he did not have sufficient funds on deposit to pay the check, but that if Roberts would permit him to take one parcel and deliver it to the purchaser, he would then have sufficient funds to deposit to meet the check. Upon these conditions the defendant delivered the check to the agent of the express company and a short time later came back and received the remainder of the merchandise. Later in the day the agent presented the check to the bank for payment and payment was refused for want of sufficient funds. The agent then began the prosecution of the defendant under Sec. 710-176, G.C., which has resulted in this indictment.
The question for determination is whether under these facts and circumstances as outlined above, the defendant is guilty of the crime defined by this section of the statute. The essential element of the offense is an intent to defraud the payee. Intent is a question of fact and not of law to be determined from all the facts and circumstances as shown by the evidence. It is claimed by the defendant that since he told Roberts, the payee, at the time he delivered the check to him that he, the defendant, did not have sufficient funds in the bank, clearly indicates a lack of intention to defraud, and therefore, removes the case from the operation of the statute.
So far as I know the only expression of the Ohio courts on this question is found in the opinion of Koenig v. State of Ohio, 121 Ohio St. 147, 167 N.E. 385, in which it is said by Judge Kinkade, 121 Ohio St. on page 157, 167 N.E. on page 388:
‘If the accused advised the Farmers' Bank prior to the issuing of the checks that he did not have the funds on deposit, or credit arranged for that would cause the checks to be paid on presentation, then manifestly the bank was not deceived by any misrepresentation, and the issuing of a check under such conditions would not be a procurement of the funds of the bank with an intent to defraud, as stated in the statute. Instead it would be a plain loan on the part of the bank of credit or cash to the accused, for the time designated in the arrangement so made.’
No cases are cited in support of this last statement above quoted, but our Supreme Court must have been aware of the unanimous agreement of the courts of all other jurisdictions, that, under statutes of the type under consideration, disclosure by the drawer to the payee, that he has not at the time sufficient funds in the bank to meet the check, purges the transaction of its criminal character, because under such circumstances the element of fraudulent intent is lacking, and the transaction in its essential nature is an extension of credit to the drawer. See 95 A.L.R. 494. Citing, Seaboard Oil Co. v. Cunningham, 5 Cir., 1931, 51 F.2d 321 (writ of certiorari denied in 1931, 284 U.S. 657, 52 S.Ct. 35, 76 L.Ed. 557);In re Griffin, 1927, 83 Cal.App. 779, 257 P. 458;Highsmith v. State, 1928, 38 Ga.App. 192, 143 S.E. 445;Hughes v. Com., 1929, 230 Ky. 37, 18 S.W.2d 880;People v. Jacobson, 1929, 248 Mich. 639, 227 N.W. 781;State v. Patterson, 1926, 75 Mont. 315, 243 P. 355;People v. Olans, 1934, 264 N.Y. 420, 191 N.E. 494;People ex rel. Indig v. Kapitofsky, 1932, 144 Misc. 543, 258 N.Y.S. 861;State v. Tatum, 1934, 205 N.C. 784, 172 S.E. 405. It has also been held in the case of Turner v. Brenner, 138 Va. 232, 121 S.E. 510, a Virginia case, decided in 1924:
And the presumption of fraudulent intent under a statutory provision, which provides that lack of funds shall, as against the maker of a worthless check, be prima facie evidence of fraudulent intent, is overcome by proof of the notification to the payee by the maker of the insufficiency of his funds in the bank to meet the check, and of the agreement of the payee temporarily to hold the check.
The very facts and circumstances which all of these cases, including the Koenig case, hold will purge the transaction of its criminal character, are shown by the evidence in this case, and according to these authorities, when the check was accepted, after disclosure by the drawer that he did not have sufficient funds in the bank at the time to meet the check, amounts to nothing more than an extension of credit, or, the creation of a debt, and is not a misrepresentation of an existing fact, but was merely in the nature of a future promise, so that a conviction of the drawer could not be sustained, because the gist of the statutory offense, under this statute, is an intent to defraud.
The only question we are concerned with in the disposition of this case is the guilt or innocence of the defendant as charged in the indictment. In the trial of a criminal case, in order to convict the defendant, the State must prove every essential element of the offense beyond a reasonable doubt, and since there is no proof of an intent to defraud, an essential element of proof required by the State, the finding is that of not guilty.