Opinion
04-22-1938
STATE v. VANDENBURG.
Caleb M. Wright, Deputy Atty. Gen., for the State. Frederick P. Whitney, of Georgetown, for defendant.
John T. Vandenburg was indicted under a statute prohibiting the issuance of worthless checks, and he moves to quash the indictment.
Indictment quashed.
LAYTON, C. J., and SPEAKMAN, J., sitting.
Caleb M. Wright, Deputy Atty. Gen., for the State. Frederick P. Whitney, of Georgetown, for defendant.
Court of General Sessions for Sussex County, April Term 1938. Motion to quash indictment.
The defendant was indicted under section 5218, Rev.Code, 1935, prohibiting the issuance of worthless checks. The indictment was in two counts, the sole difference being that, in the first count, the defendant was charged with making and drawing a check, while in the second count the charge was that he uttered and delivered a check. The counts alleged intent to defraud and knowledge that the defendant "as the maker thereof had not sufficient funds in the said * * bank for the payment of said check in full upon its presentation."
The statute, under which the indictment was framed, is as follows:
"Any person who, with intent to defraud, shall make or draw, or utter or deliver, any check, draft or order for the payment of money, upon any bank or other depositary knowing at the time of such making, drawing, uttering or delivering that the maker, or drawer, has not sufficient funds in, or credit with, such bank or other depositary for the payment of such check, draft or order, in full, upon its presentation, shall be guilty of a misdemeanor, and punishable by imprisonment for not more than one year, or by a fine of not more than one thousand dollars, or both fine and imprisonment.
"As against the maker or drawer thereof, the making, drawing, uttering or delivering of a check, draft, or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud and of knowledge of insufficient funds in, or credit with, such bank or other depositary; Provided, such maker or drawer shall not have paid the drawee thereof the amount due thereon, together with all costs and protest fees, within ten days after receiving notice that such check, draft or order has not been paid by the drawee.
"The word 'credit' as used herein shall be construed to mean an arrangement or understanding with the bank or depositary for the payment of such check, draft or order."
The defendant moved to quash the indictment for the reasons, 1. that it contained no allegation that the defendant failed to provide credit for the payment of the check; 2. that it contained no allegation that the defendant failed to pay the drawee the amount due on the check together with all costs and protest fees within ten days after receiving notice that the check had not been paid by the drawee.
LAYTON, Chief Justice, delivering the opinion of the Court:
The statute was designed to protect the public against a species of cheat. The evil of drawing and issuing checks on banks in which the drawer has no funds, or insufficient funds, has long been recognized, and, from time to time, statutes in varying forms have been enacted. In this, as, perhaps, in other states, it has been a matter of some difficulty to frame an act sufficiently adequate for the protection of the public against those fraudulently disposed, and, at the same time, to exclude from its operation, those innocent of an intent to defraud.
The first statute, chapter 265, vol. 21, pt. 2, Del.Laws, made it a misdemeanor for one knowingly to issue a bad or worthless check for any valuable consideration, with the proviso that the act should not apply to overdrawing a bona fide account. By chapter 282, vol. 27, Del.Laws, the inhibition was directed against the issuance, knowingly and fraudulently, of a check on an overdrawn account. By chapter 242, vol. 28, Del.Laws, it was made a misdemeanor to issue knowingly a check on an overdrawn account, or on a bank where the drawer had no account. These Acts, doubtless, were regarded as inadequate. By chapter 237, vol. 34, Del. Laws, the existing law was enacted.
The word "funds", abstractly, is of broad significance, but, in general acceptation and signification, it means money, and it is used in this sense in the Act. Galena Ins. Co. v. Kupfer, 28 Ill. 332, 81 Am.Dec. 284; Hatch v. First Nat. Bank of Dexter, 94 Me. 348, 47 A. 908, 80 Am.St.Rep. 401. The word "credit" is specifically defined to be an arrangement or understanding with the bank for the payment of the check. The two words, "funds" and "credit", are not to be regarded as synonymous or as alternates.
The act, by its very terms, does not view as guilty of a cheat the drawer of a check, who, while not having sufficient money to his credit at the bank on which it is drawn for its due payment, yet has arranged with the bank for the payment of the check upon its presentation. That which is denounced as fraudulent conduct, deserving of criminal stigma and punishment, is the issuance of a check where its maker has neither sufficient funds nor an arrangement thereat for its payment. Intent to defraud is the essential of the offense. Clearly, there is no fraudulent intent in the issuance of a check if the drawer has arranged for its payment.
The indictment alleges only that the defendant has insufficient funds in the drawee bank for the payment in full of the check. It ignores the possibility of an arrangement or understanding with the bank for payment of the check in full upon its presentation.
In an indictment for an offense created by statute, the general rule is that the chargemust be so laid as to bring the accused precisely within the description of the offense as defined in the statute, alleging distinctly all the essential requisites that constitute it; and nothing can be taken by intendment. 31 C.J. 703; 1 Wharton, Crim.Pr. § 269; State v. Donovan, 5 Boyce 40, 28 Del. 40, 90 A. 220; State v. Adair, 4 W. W. Harr. 585, 34 Del. 585, 156 A. 358.
The defendant has not been brought within the material words of the statute. The indictment is fatally defective, and must be quashed. State v. Edwards, 190 N.C. 322, S.E. 10; People v. Frey, 165 Cal. 140, P. 127.
The second paragraph of the section was not intended to be descriptive of the offense denounced by the statute. It provides a rule of evidence. It is not, therefore, necessary to allege that the defendant failed to pay to the drawee the amount due on the check and all costs and protest fees within ten days after notice of non-payment. Merkel v. State, 167 Wis. 512, 167 N.W. 802. State v. Edwards, supra, is not opposed. There, the provision with respect to the failure to provide funds or credits for the payment of the check upon its presentation, or within ten days after notice of non-payment, was made descriptive of the offense.
The indictment is quashed.