Opinion
No. 7544.
October 3, 1949.
Cliff Bell was convicted in the Third Judicial District, Ada County, Charles F. Koelsch, J., of issuing a check without funds, and he appealed.
The Supreme Court, Holden, C.J., held that the undisputed proof showed that the payee had extended credit to defendant and that since the element of fraudulent intent was lacking the statute under which the defendant was prosecuted and convicted did not apply and reversed the conviction with instructions to dismiss the action.
W.A. Johnston and E.G. Elliott, of Boise, for appellant.
The maker of a check drawn upon a bank in which he has no account or funds, but which check was not presented for payment to the bank on which it was drawn, after making and delivery, is not punishable under the provisions of our amended law pertaining to bad checks, since it appears from the language of the law as amended that the crime is not complete except on presentation of the check for payment to the bank on which it was drawn. Crain v. State, 78 Gooey. App. 806, 52 S.E.2d 577; Cf. Mayes v. State, 145 Tex.Cr.R. 295, 167 S.W.2d 745; 22 Am.Jur., p. 479, n. 4.
If a check is delivered and received with the understanding that it is not presently collectible the transaction is an extension of credit and does not have a criminal character. State v. Ellis, 67 Ariz. 7, 189 P.2d 717; State v. Doudna, 226 Iowa 351, 284 N.W. 113; Hammack v. State, 114 Miss. 611, 75 So. 436; State v. Young, 266 Mo. 723, 183 S.W. 305; People v. Karp, 298 N.Y. 213, 81 N.E.2d 817; Re Stuyvesant, 4 N.Y. City Hall Rec. 156; Lloyd v. state, 98 Tex. Cr. R. 504, 266 S.W. 785.
Robert E. Smylie, Attorney General, Don J. McClenahan, J.N. Leggat, J.R. Smead, and Donald A. Purdy, Assistant Attorneys General, for respondent.
Presentment of a check for payment to the bank on which it was drawn is not necessary to complete the crime of issuing a check without funds. Laws 1949, c. 151, Sec. 1; Merkel v. State, 167 Wis. 512, 167 N.W. 802 (1918); Cook v. Commonwealth, 178 Va. 251, 16 S.E.2d 635 (1941); State v. Avery, 111 Kan. 588, 207 P. 838, 839, 23 A.L.R. 453 (1922); Hatcher v. Commonwealth, 224 Cooee. 131, 5 S.W.2d 882 (1928); Commonwealth v. Rush and Harnet, 78 Pa. Super. 404 (1921); Beach v. State, 28 Okl. Cr. 348, 230 F. 758, 760 (1924).
The Idaho statute clearly states that the crime of issuing a check without funds is complete if at the time of making the check, there are no funds with which to pay it if presentment were made at that time. Presentment of the check itself is unnecessary since that would be requiring a vain and useless act. Laws 1949, c. 151, Sec. 1.
Clif Bell was charged with and convicted of the crime of issuing a check without funds, and sentenced to serve five years in the penitentiary, and he appeals.
The record discloses that on Monday night, March 28, 1949, between 10:00 and 12 o'clock, Bell drew a check on the First Security Bank of Idaho for the sum of $8; that Bell had no credit with that bank and at that time of the issuance of the check had no funds on deposit in the bank, and never had had.
In connection with the issuance of the check it appears the state proved Bell told the person (Alex Nicolona, bar tender at the Pastime Club in Boise to whom Bell delivered the check), in substance, that he, Bell, would come in the next morning and pick it up; that Nicolona replied; "I'll tell Mr. Odiaga to hold onto it through the morning and not put it in until afternoon". That at the moment Nicolona was not disposed to cash the check; that he changed his mind, however and cashed the check because Bell told him he would come in the morning; that if he (Bell) didn't get in the morning to pick the check up, to let it go through the bank in the afternoon; that if the check was presented the next morning it would be contrary to the agreement with Nicolona.
It also appears that around 2 o'clock in the morning, following the issuance of the check, and before it was known whether Bell had any fund in the bank or not, Boise detectives arrested Bell and took him to the police station, and that Bell was in jail throughout the next day (Tuesday).
The state proved, as above shown, and it is, of course, bound by that proof, that credit was actually extended in the transaction involving the issuance and cashing of the $8 check; that such credit was extended, by agreement, from the date of the giving of the check until the afternoon of the next day. It could make no difference, as a matter of law, whether a credit extension agreement involving the payment of a check, covers a day, or a month, or a year, it would still, and nevertheless, be, and remain, a credit extension transaction. Such a transaction of course, is not within the statute under which appellant was prosecuted and convicted, in that the element of fraudulent intent was lacking. State v. Ellis, 67 Ariz. 7, 189 P.2d 717, 720.
It follows the judgment must be, and it is, hereby reversed and the cause remanded to the district court with instructions to dismiss the action.
GIVENS, PORTER, TAYLOR and KEETON, JJ., concur.