Opinion
No. 32415.
October 12, 1936. Suggestion of Error Overruled October 26, 1936.
1. CRIMINAL LAW.
In prosecution for giving a check with fraudulent intent, refusal of instruction that jury must find beyond reasonable doubt that defendant knew there was no probability of check being paid held not error where defendant had no money in bank at time of making representation that he had plenty of money in bank, and never enough to pay check.
2. FALSE PRETENSES.
Evidence held to warrant conviction for giving check with fraudulent intent.
3. CRIMINAL LAW.
Statement in bill of exceptions that district attorney in prosecution for giving check with fraudulent intent said that any thief can make such excuses and that a thief always finds an alibi held insufficient to present question of propriety of such argument for review.
4. CRIMINAL LAW.
To demonstrate error in district attorney's argument, sufficient part of argument must be stated to show reviewing court language deemed improper.
5. CRIMINAL LAW.
In prosecution for giving check with fraudulent intent, where proof showed that defendant misrepresented facts to payee, statement of district attorney in argument that defendant lied to payee held not reversible error.
6. STATUTES.
Statute substantially defining crime of giving check with fraudulent intent as in former statute, but fixing punishment as for a misdemeanor instead of as for a felony, as was done in former statute, held to repeal former statute (Code 1930, sec. 923; Laws 1932, chap. 299).
7. FALSE PRETENSES.
Imposition of penitentiary sentence instead of punishment for a misdemeanor on conviction for giving check with fraudulent intent held reversible error (Laws 1932, chap. 299).
APPEAL from the circuit court of Perry county. HON.W.J. PACK, Judge.
A.T.L. Watkins, of New Augusta, and W.F. Burdett, of Richton, for appellant.
All the statutes make it criminal to "obtain" goods, property, money or other valuable thing. There has never been a statute attempting to make it criminal to draw a check, in payment of a debt already incurred and due; if it be argued that notice was not required, informing appellant of the dishonor of the check, it would violate section 26 of the constitution and render the law void.
The writing of a check after the property is obtained is not a crime, it must be the cause of the party parting with his property.
State v. Greeman, 60 So. 774.
It is manifest and uncontradicted that the property was sold and delivered and not a word said about any check; but some time later, when appellant was preparing to depart, the check was written and delivered, according to complaining witness's testimony.
There is not a pretense that appellant ever knew, before he was locked up in jail, about the dishonor of the check or given an opportunity to make it good.
It is manifest that the court was in a way assisting the district attorney to build his case. The jury could get his wishes from his rulings, especially in overruling objections to abusing appellant, in the closing argument, calling him a "liar and a thief."
We gather from the state's evidence that the cause is still in justice court, and it being a misdemeanor, chapter 299, Acts of 1932, the justice of the peace could not transfer it, but must dispose of it, that is, try it and proceed to judgment.
103 So. 10; 16 C.J., page 148, sec. 166.
Ultimately and without doubt the whole proceeding was an attempt to collect a debt through the criminal court, in violation of section 30 of the constitution.
If we have any "bad check law" it is certainly chapter 299, Acts 1932. In Cooper v. State, 127 So. 684, this court specifically held that defendant must have written notice, that verbal notice would not suffice. In Johnson v. State, 132 So. 330, the court said: "It is essential to a final judgment under section 924, Code of 1930, that written notice must be given to him personally" and allow him ten days to make the check good. In State v. Johnson, 141 So. 338, on May 2, 1932, the court said, "that the purpose of sections 924 and 925, Code 1930, is, and certainly its effect is, to use the criminal processes of the court, to enforce the collection of debts and therefore it violates section 30 of the Constitution."
Webb M. Mize, Assistant Attorney-General, for the state.
Chapter 299 of the Acts of 1932 of the Mississippi Legislature provides for punishment for giving a check when there are no funds in the bank, and making the offense a misdemeanor. The record in the case at bar does not show that the indictment was drawn under chapter 299 of the Acts of Mississippi Legislature of 1932, but on the contrary, it appears to have been drawn under section 923 of the Code of 1930, due to the fact that the indictment specifically sets out that the appellant, A.R. Russell, falsely, knowingly and feloniously obtained with fraudulent intent certain cows, the property of W.R. Hinton, of the total value of twenty-eight dollars and eighty-five cents, etc. It is further noted that chapter 299 of the Acts of Mississippi Legislature 1932 neither repealed nor amended section 923 of the Code of 1930.
It has been generally held that giving a worthless check or draft, or a check or draft which the accused has no reason to suppose will be honored is a false pretense without any verbal representations as to same, the giving of such check or draft being itself a representation, symbol or token that the accused has money or credit with the drawee to the amount of its face value.
25 C.J. 612, sec. 42.
Appellant assigns as error the court ruled favorably to the state all through the trial and adversely to the appellant and that these rulings were manifestly prejudicial to appellant. Counsel for appellant does not single out any particular ruling whereby defendant was prejudiced, and does not argue this proposition in his brief. Therefore, if there were errors in these rulings they are waived by appellant.
Bridges v. State, 154 Miss. 489, 122 So. 533.
The special bill of exceptions shows that the district attorney made comments as follows: "Any thief can make such excuses;" and "A thief always has an alibi;" and "He lied to Mr. Hinton." The very essence of the offense of false pretense is lying and stealing. These statements as made by the district attorney do not constitute statements of fact, but were mere conclusions or inferences of the district attorney. These statements made by the district attorney may not have been proper but the court has held in numerous cases that if they were error that they are not such as to constitute reversible error.
Blackwell v. State, 151 Miss. 487, 135 So. 192.
I do not think that the record sufficiently shows that the case was in the justice of the peace court. Anyway, there was nothing presented to the court below to show that the case was pending in another court. No plea of abatement was filed and the court below could not stop the trial of the case until he was requested to do so by appellant and, in our opinion, the record does not show that the case was pending in justice of the peace court, but if this court thinks otherwise, we contend that no error can be assigned and the trial court put in error on matters not presented at time of trial.
Grady v. State, 144 Miss. 778, 110 So. 225; Peters v. State, 158 Miss. 530, 130 So. 645; Dugan v. State, 151 Miss. 781, 119 So. 298; Salmon v. State, 151 Miss. 530, 118 So. 610.
Appellant, A.R. Russell, was indicted in Perry county on March 17, 1936, for giving a check to W.R. Hinton in the amount of twenty-eight dollars and eighty-five cents, falsely and knowingly representing to Hinton that he, appellant, had this amount of money in the bank, and that the check was good. By such representations, appellant purchased two cows from Hinton. The indictment charged that this check was given with fraudulent intent, and that appellant induced Hinton to accept it in the belief that it was good.
The appellant was tried upon this charge, convicted, and sentenced to serve one year in the penitentiary, from which this appeal is prosecuted.
It appears that A.R. Russell and L.H. Hessions went to the place of W.R. Hinton for the purpose of purchasing cattle, and negotiated for the purchase of two cows and two yearlings. The cows were butchered on the premises, and appellant gave to Hinton the check for twenty-eight dollars and eighty-five cents therefor. Hinton's daughter was present, and asked appellant if the check was good, to which he replied that it was, and that he had plenty of money in the bank, and that the money could be procured from the check anywhere. Russell and Hessions carried the beef from Hinton's premises and sold it. Hinton deposited the check in the bank at Richton, and it was sent to the Citizens Bank at Hattiesburg, and was returned marked "Insufficient funds." Thereafter, Hinton went to Hattiesburg and presented the check to the bank there in person, but payment was refused, and Hinton undertook to look up Russell, but was unable to find him, and he seems to have preferred charges against Russell and to have him arrested.
The check was dated October 14, 1935, at which time Russell had no account with the Citizens Bank, but in November of that year he opened a small account with said bank, but never at any one time, had the amount of twenty-eight dollars and eighty-five cents in said bank, and all the money he deposited in that bank was subsequently withdrawn.
Hinton testified that he believed Russell's representations, and thought the check was good, and parted with his property on the faith of it being good.
Russell testified, in his own behalf, and said that he knew he had twenty-four dollars in the bank at the time he gave the check; that he was in partnership with Hessions, and depended upon him to deposit sufficient money to cover the check, as Hessions was the financial partner of the business, and that Hessions collected for the beef sold, and attended to all the financial business.
There was a verdict for the state, and it is contended that Russell acted in good faith, and did not intend to cheat, but honestly thought the check would be paid when presented.
It was testified to by Hinton and his daughter that Russell, on being asked, represented that he had plenty of money in the bank, and that the check would be paid, and the proof shows that, at that time, he had no account with the bank.
The appellant complains of the refusal of instructions requested by him, to the effect that before the jury could find him guilty, they should believe, beyond a reasonable doubt, that he knew there was no probability of the check being paid, and if appellant did believe that the check would be honored, then the jury should return a verdict of not guilty. This instruction is not applicable to the facts of this case, because the appellant could not have acted in good faith in making the representations that he had plenty of money in the bank, when he did not have any, and never enough to pay the check, and that the check would be paid anywhere. There was no representation that Hessions would make the check good, or that Hinton was depending upon Hessions to take care of it. There was no error in the refusal of the instruction, and the evidence was ample to warrant the conviction.
During the trial, the appellant tendered a special bill of exceptions stating, in effect, that the district attorney said "any thief can make such excuses;" "a thief always finds an alibi," and other similar remarks. There is not a sufficient statement of the scope of the argument for use to tell whether it was proper or not. In order to put the court in error, there must be stated a sufficient part of the argument to show this court the language deemed improper. Another statement of the district attorney is that, "he lied to Mr. Hinton." The proof shows that appellant did misrepresent the facts to Mr. Hinton, and hence it was permissible for the district attorney to use such language. Abusive statements should not be made in the trial of a case, but there are times when transactions must be characterized with vigor, and we cannot reverse for this alleged argument.
It is also contended by the appellant that the transaction shown was a misdemeanor and not a felony, and that the court below erred in sentencing him to the penitentiary.
This presents for consideration the question whether chapter 299, Laws 1932, repeals section 923, Code 1930. By comparing these, it will be found that chapter 299, Laws 1932, although not specifically repealing section 923, contains substantially the same language and elements of crime, but fixes the punishment for a misdemeanor and not a felony. It is not to be assumed that the Legislature intended to have two statutes upon the same subject, embracing the same elements of crime, and make the crime in one a misdemeanor, and in the other a felony. The rule is shown in the case of State v. Wyo. Mfg. Co., 138 Miss. 249, 103 So. 11, as follows: "Where the Legislature in a later act covers the entire scheme dealt with in former acts, the former act will be repealed by the later act, although there is some difference in the provisions of the two statutes. . . . M. O.R. Co. v. Weiner, 49 Miss. [725] 739; Myers v. Marshall County, 55 Miss. [344] 347." In the course of the opinion in that case, it was said that, "As to the fifth ground of the motion to dismiss, we think the appeal was in time and that the appeal could not be taken until the order of the Tax Commission approving the roll as finally assessed was entered under the authority of Moller-Vandenboom Lbr. Co. v. Attala County [ 135 Miss. 249], 99 So. 823, and Wilkinson County v. Foster Creek Lbr. Mfg. Co. [ 135 Miss. 616], 100 So. 2. . . . A statute existing may be repealed without being specifically and directly referred to, where the Legislature enacts a new statute covering the field covered by the former act, although there is some difference in the provisions of the two statutes. In the case of Myers v. Marshall County, 55 Miss. [344] 347, the rule is stated in the following language: `We regard this act as a revision of the whole legislation on the subject of the fees of the officers embraced in it, and as precluding the assertion of any right on their part not given, or distinctly recognized, by the act. M. O.R. Co. v. Weiner, 49 Miss. 725. "A subsequent statute, not repugnant in its provisions to a former one, but clearly intended to prescribe the only rule in the case provided for, repeals the former statute." Swann v. Buck, 40 Miss. [268] 270.'" In the case of Mobile O.R. Co. v. Weiner, supra, this court said that, "The general rule is, that when any statute is revised, or when one statute is framed from another, some parts being omitted, the parts omitted, are to be considered as annulled. For it must be presumed that the legislature has declared its entire will, otherwise there must be imputed to them gross carelessness or ignorance. Sedgwick on Statutes, 429."
We are, therefore, of the opinion that chapter 299, Laws 1932, repeals section 923, Code 1930.
It therefore follows that the court below was correct in convicting the appellant of the act denounced by chapter 299, Laws 1932, which is sufficiently charged in the indictment, but that it erred in imposing a penitentiary sentence. The judgment of conviction and the verdict rendered is affirmed, but the judgment imposing a penitentiary sentence is reversed, and the cause is remanded to the lower court for a proper sentence, under chapter 299, Laws 1932.
Affirmed in part, reversed in part, and remanded.