Instead, appellants continue, a postdated check is a "mere promise" to discharge a present obligation at a future date and failure to fulfill this promise cannot satisfy the fraudulent intent element found in the statute. For this proposition appellants cite State v. Stout, 8 Ariz. App. 545, 448 P.2d 115 (1968), and several cases from other jurisdictions reversing criminal convictions for issuing postdated checks. We disagree with appellants for two reasons.
(See People v. Poyet (1972) 6 Cal.3d 530, 536 [ 99 Cal.Rptr. 758, 492 P.2d 1150]; Raphael v. People's Bank of Benicia (1919) 45 Cal.App. 115, 117 [ 187 P. 53]; State v. Etheridge (1968) 74 Wn.2d 102 [ 443 P.2d 536, 540]; 6A Words and Phrases (1966) Check, pp. 517-518; see also authority there collected.) (5) The presentation of a postdated check is not subject to the civil or penal sanctions normally attending the knowing tender of a check without sufficient funds for a valuable consideration. ( People v. Bercovitz (1912) 163 Cal. 636, 637-638 [ 126 P. 479]; State v. Stout (1968) 8 Ariz. App. 545 [ 448 P.2d 115, 117].) A postdated check is not such a check as was represented by Anny and the Wilsons' offer. "Ordinarily [as here] its purpose is to obtain an extension of credit."
We have examined the cases on which the state relies. See State v. Daymus, 90 Ariz. 294, 367 P.2d 647 (1961); State v. Ellis, 67 Ariz. 7, 189 P.2d 717 (1948); State v. Meeks, 30 Ariz. 436, 247 P. 1099 (1926); and State v. Stout, 8 Ariz. App. 545, 448 P.2d 115 (1968). It is difficult to draw a cohesive principle from these decisions, but we do not believe that any of them stands for the proposition that the deceit which is inherent in issuing a check knowing that there are insufficient funds to cover it constitutes intent to defraud as a matter of law where intent to defraud is an element of the statute.
The defendant's basic argument is that since the instrument on its face contained the words "upon acceptance" (he does not argue under the circumstances of this case that the words "Not valid over $900" are controlling), the negotiability of the instrument was destroyed and thus it became a promise to pay in the future (a debt). From this premise, he argues that the instrument on its face will not support the necessary inference of "intent to defraud" under the statute. See, e.g., the situation as to post-dated checks in State v. Stout, 8 Ariz. App. 545, 448 P.2d 115 (1968) (payee's acceptance of post-dated checks constituted an extension of credit which "purged" the transaction of criminal intent). In our opinion, the defendant's position is not well taken.
Such a check differs from an ordinary check in that it carries on its face implied notice that there is not sufficient money presently on deposit to meet it, and an implied promise that there will be funds on deposit the date the check becomes due." ( State v Brookshire, 329 S.W.2d 252, 256 [Mo]; Commonwealth v Kelinson, 199 Pa. Super. 135; Commonwealth v Conti, 236 Pa. Super. 488; People v Abbott, ___ Col ___, 638 P.2d 781; People v Niver, 7 Mich. App. 652; State v Stout, 8 Ariz. App. 545; Bivens v State, 153 Ga. App. 631; Lovell v Eaton, 99 Vt. 255.) "One who knowingly takes a post-dated check * * * and exchanges an article of value therefor, makes the exchange not upon his faith that the drawer has at the time sufficient funds to meet the check, but upon his willingness to risk the ability of the drawer to make a deposit and to have in bank, on or after the date mentioned in the check, sufficient funds with which to comply with his obligation."