Berry v. State, (No. 2893.)

• Decision Date: 18 March 1922
• Docket Number: (No. 2893.)
• Citation: 111 S.E. 669,153 Ga. 169
• Parties: BERRY. v. STATE.
• Court: Georgia Supreme Court

153 Ga. 169

111 S.E. 669

BERRY.

v.STATE.

(No. 2893.)

Supreme Court of Georgia.

March 18, 1922.

(Syllabus by the Court.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Defraud.]

Error from Superior Court, Seminole County; W. C. Worrill, Judge.

W. M. Berry was convicted of giving a worthless check, and he brings error. Reversed.

W. M. Berry was indicted for giving a worthless check, and was convicted. He moved for a new trial, which was refused, and this is the error assigned.

On September 19, 1921, P. L. Watts loaned W. M. Berry $48 to pay in part a fine imposed upon him at Crawfordville, Fla. Berry came back to Brinson, Ga. On September 20, 1921, Watts went to Iron City, Seminole county, Ga., and asked Berry to pay him. Berry said that he and his father would go out in the country and get the money. Upon the evening of that day Watts went back to Iron City, saw Berry, and asked him to pay back the $48 which he had paid for Berry in Florida. Berry said that he had gotten the money for Watts, had it in the bank, and would bring it to him the next morning. Watts said to Berry, "If you have the money in the bank, just give me a check for the money, and it will save you the trip to my house." Berry said, "All right." Watts wrote the check, and Berry signed it. Watts testified that he believed that Berry had the money in the bank as he said he had, and so accepted the check. Watts took the check back to Brinson, Ga., and deposited it in the bank, and it came back unpaid. Watts then gave it to his agent, J. C. Robinson, for collection. Robinson went to Iron City to see Berry to collect the amount of this check. Berry did not pay it. Robinson presented the check to the Seminole Bank at Iron City for payment, which was refused by the bank. At the time Berry gave his check he had no account with the Seminole Bank, and had never had such account. He had made no arrangement of any sort with the bank to pay this check before it was presented, and had arranged for no credit with that bank. He asked the cashier to let him know when the check came in, as he had given it, and wanted to protect it. When the check came the cashier of the bank notified him, but Berry did nothing about it, and the bank sent the check back. The cashier notified him that this check had come some time between 2 and 4 o'clock, and returned it after 4 o'clock. This check was as follows:

"Seminole Bank. Iron City, Georgia, 9/20/21. Pay to the order of P. L. Watts forty-eight and no/100 dollars ($48.00). [Signed] W. M. Berry."

This check bore the indorsement of Watts, various banks, and an indorsement, "No account, Seminole Bank."

The defendant introduced no evidence, but he stated that Watts loaned him $48 to pay a fine at Crawfordville, Fla., and that he told Watts that he and his father would get up the money and pay him when they got back to Iron City. The following day Watts came to Iron City, and he told him that they had arranged to get the money, when Watts told him if that was the case, to give him a check, and they could put the money in the bank and the check would be paid. He had never had any money in the Seminole Bank since it was organized.

J. E. Drake, and W. V. Custer, both of Bainbridge, for plaintiff in error.

B. T. Castellow, Sol. Gen., of Cuthbert, and R. R. Arnold and E. C. Hill, both of Atlanta, for the State.

HINES, J. (after stating the facts as above). [1, 4] 1. It is urged by counsel for the defendant that section 34 of the act of August 16, 1919 (Ga. Laws 1919, pp. 135, 220), is in conflict with article 3, § 7, par. 17, of the Constitution of this state, which provision is fully set out in the first headnote, because this act amends or repeals the act of August 14, 1914 (Ga. Laws 1914, p. 86), which makes "it a misdemeanor to draw and utter any check, draft, or order when the drawer has not at the time sufficient funds to meet the same, provided such drawer does not deposit with the drawee sufficient funds to meet the same within thirty days." The act of 1919 does not refer to the act of 1914. The act of 1919 is a general law regulating banking in this state, creating the department of banking, providing for the incorporation of such banks, the amendment, renewal, and surrender of their charters, and providing penalties for the violation of laws with reference to banking and the banking business. It Is unnecessary for us to determine whether the act of 1919 amends or repeals the act of 1914: but, assuming that it does either, it does not collide with the above constitutional principle. If one thing is settled by the decisions of this court, it is that this provision of our state Constitution refers alone to express amendments or repeals of sections of the Code or of statutes, and has no reference whatever to implied amendments or repeals of either. Peed v. McCrary, 94 Ga. 488, 21 S. E. 232; Swift v. Van Dyke, 98 Ga. 725, 26 S. E. 59; Edalgo v. So. Ry. Co., 129 Ga. 266, 58 S. E. 846; Nolan v. Central Ga. Power Co., 134 Ga. 201(3), 67 S. E. 656; Silver v. State, 147 Ga. 162, 93 S. E. 145. At this late day the above ruling ought to command the universal recognition of the bar of this state.

2. Errors are assigned upon the instruction of the court to the jury of which the substance is set forth in the second head-note of this opinion. The alleged errors are: (a) That this charge is contrary to law, contrary to the evidence, and that there is no evidence that the payee of the check had been injured by the receipt thereof, the evidence showing that the check was given for a pre-existing debt. We think that the reference in this instruction to the alleged false representation of the drawer that he had gotten up the money and deposited it in the bank on which the check was drawn to meet the same was inaccurate under the facts of this case. Such false representation did not tend to establish the intent of the defendant to defraud the payee, as will be more fully dealt with in the next division of this opinion. The reference in this charge to the fact that the payee had acted to his injury in receiving the same is without evidence to support it. Under certain circumstances this instruction would be accurate; but, under the facts of this case, it was harmful to the defendant

3. It is contended by counsel for the defendant that the verdict is without evidence to support it. This raises the question of the proper construction of section 34 of this act of 1919. This section 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 depository, knowing at the time of such making, drawing, uttering or delivery that the maker or drawer has not sufficient funds in or credit with such bank, or other depository, for the payment of such check, draft or order in full upon its presentation, shall be guilty of a misdemeanor. The making, drawing, uttering, or the delivering of such check, draft or order as aforesaid, shall be prima facie evidence of intent to defraud. The word 'credit' as used herein shall be construed to mean an arrangement or understanding with the bank or depository for the payment of such check, draft or order."

The gravamen of this offense is the "intent to defraud." The means of effecting tins intent to defraud is by making, drawing, uttering, or delivering any check, draft, or order for the payment of money upon any bank, or other depository, 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 depository, for the payment of such cheek, draft, or order in full upon its presentation. The making, drawing, uttering, or delivering of such check, draft, or order is prima facie evidence of intent to defraud. The word "credit" as used in this act means an arrangement or understanding with the bank or depository for the payment of such check, draft, or order.

Under this act the state can always prove a case by showing the following facts: (1) The making, drawing, uttering, or delivering any check, draft, or order for the payment of money upon any bank or other...