Opinion
No. 1130.
April 1, 1959.
Appeal from the Superior Court, Maricopa County, Elbert R. Thurman, J.
Robert Morrison, Atty. Gen., Charles C. Stidham, County Atty., Donald D. Meyers and Howard P. Leibow, Deputy County Attys., Phoenix, for appellee.
The appellant, Alice Wittman, was convicted under A.R.S. § 13-311 of obtaining money by means of a false or bogus check issued with intent to defraud Basha's Market on March 14, 1957. Her motions for a directed verdict and for a new trial were denied.
She appeals on the sole ground that she was tried under the wrong statute, contending that only A.R.S. § 13-316, and not A.R.S. § 13-311, was applicable in a situation where the defendant drew a check on insufficient funds rather than on no funds at all. A.R.S. § 13-316, dealing with checks drawn on insufficient funds with intent to defraud, provides only misdemeanor punishment in certain instances, and one to fourteen years in the state prison in others; A.R.S. § 13-311, a felony, provides a penalty of one to five years imprisonment.
However, the question of whether A.R.S. § 13-316 could be in conflict with A.R.S. § 13-311 as to checks drawn on insufficient funds can never be reached in this case. The facts do not establish appellant's contention that she in fact drew a check on "insufficient funds" rather than one on no funds at all.
The facts are these: On March 12, 1957, Alice Wittman opened a special checking account under the name of Alice Uzell in the Valley National Bank branch in Chandler, Arizona, with a deposit of $10.50. One $5 check was paid out of that account; it was closed by the bank on April 19, 1957, after it had been overdrawn by six $1 charges for checks returned by the bank as drawn on insufficient funds. The seven checks were signed by Alice Uzell.
On March 14, 1957, the appellant issued a $25 check to Basha's Market in Chandler, signing the name Alice Boling with a non-existent address. This check was returned by the bank with the notation "No Account". At that point there was $4.50 in the Alice Uzell account. Alice Wittman had made no arrangement with the bank to pay checks signed Alice Boling out of the account of Alice Uzell, and the bank had no knowledge that these three names were used by the same individual.
We do not agree with appellant's contention that if one has an account in a bank under one name, and draws a check on that bank under another name, with no expectation that it will be honored, such check may be one drawn on insufficient funds.
There was a debtor-creditor relationship between the bank and Alice Uzell. There was none between the bank and Alice Boling. The fact that these two were the same physical person is here immaterial. The check given by Alice Boling was a wilfully untrue written order on a bank in which she had no funds and which she had no reason to suppose would be honored, and was thus false and bogus under A.R.S. § 13-311. Williams v. Territory, 13 Ariz. 27, 108 P. 243.
The judgment is affirmed.
PHELPS, C.J., and STRUCKMEYER, UDALL and BERNSTEIN, JJ., concur.