Bivens v. State

• Decision Date: 27 February 1980
• Docket Number: No. 59255,59255
• Citation: 266 S.E.2d 304,153 Ga.App. 631
• Parties: BIVENS v. The STATE.
• Court: Georgia Court of Appeals

Page 304

266 S.E.2d 304

153 Ga.App. 631

BIVENS v. The STATE.

No. 59255.

Court of Appeals of Georgia.

Argued Jan. 14, 1980.

Decided Feb. 27, 1980.

Horton J. Greene, Alpharetta, for appellant.

William E. Frey, Sol., Martin L. Cowen, III, Riverdale, for appellee.

BIRDSONG, Judge.

Bad check. Appellant Bivens sought the legal services of one Steinberg. Bivens and Steinberg agreed that Bivens would pay a legal fee of $500. These services were to be paid for by Bivens as the services were rendered. In July, 1977, Bivens gave Steinberg five checks, each in the amount of $100. The checks were to be negotiated by Steinberg, one at the end of July and the remaining four individually at the end of the succeeding four months, but only for services rendered. A literal reading of that contract is that if Steinberg did not render any services in a particular month, the check for that month would not be negotiated. In fact, the last three checks have never been negotiated by Steinberg nor has Steinberg made any contention that services were rendered so as to make any legal fees due and owing in relation to the last three checks.

At the end of the first period of services, Steinberg negotiated the first check and was paid by the drawee bank for those services. At the end of the second month, Steinberg negotiated the second check for services rendered during that month. This check was returned for insufficient funds. Efforts to obtain payment on this check proved fruitless. At a bench trial Bivens was convicted of issuing a check for a present consideration with intent to defraud, i. e., that at the time he issued it, he knew there would beinsufficient funds to cover the check. Bivens brings this appeal enumerating error on the general grounds. Held :

We reverse. A person commits criminal issuance of a bad check when he makes a check for the payment of money on any bank in exchange for a present consideration, knowing that it will not be honored by the drawee. Code Ann. § 26-1704. In effect what occurred in this case is that Bivens gave Steinberg a check for services rendered in the month of July for $100. He gave four post-dated checks for further services to be rendered, each dated one month apart. At the time of the giving of the five checks, it is uncontested that Bivens was employed and had sufficient funds at least to meet the first check when presented for payment. Between the time of the payment of his first check and the second, Bivens lost his job...