Colin v. State

• Decision Date: 10 February 1943
• Docket Number: No. 21999.,21999.
• Citation: 168 S.W.2d 500
• Parties: COLIN v. STATE.
• Court: Texas Court of Criminal Appeals

168 S.W.2d 500

COLIN v.STATE.

No. 21999.

Court of Criminal Appeals of Texas.

February 10, 1943.

Appeal from Brown County Court; A. E. Nabors, Judge.

John B. Colin was convicted of giving a check without sufficient funds, and he appeals.

Reversed and remanded.

Parker & Powell, of Brownwood, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

Conviction is under what is usually referred to as the "hot check" law, punishment assessed being a fine of $100.

Our State's Attorney, the Hon. Spurgeon Bell, has furnished us with the following brief, which so accurately reflects our views that same is adopted as the opinion of the court:

"Brief for the State

"The appellant was charged by complaint and information in the County Court of Brown County with having given a check to O. L. Dillingham, doing business as Banner Creameries, when he did not have sufficient funds in the bank to cover said check.The check was in the amount of fifteen dollars and was given on the 18th of March, 1941.It was alleged that the check was given in payment of an account incurred for the purchase of dairy products and ice cream.Otherwise expressed, it was given to pay a pre-existing debt.(Tr. 2-5).

"The evidence showed that the appellant had a weekly credit rating with the Banner Creamery Company, which was owned and operated by O. L. Dillingham.A Mr. Spurrier presented a statement of appellant's account to appellant and the appellant issued the check that is the subject of this prosecution.Mr. Spurrier testified that he had been back to see appellant a number of times about making the check good but the check had not been paid nor had offer been made by the appellant to pay it.The evidence negatives that appellant received any merchandise or other thing of value, such as money, at the time the check was given.The appellant testified that he gave the check to Spurrier and told him that he did not have enough money in the bank to pay it.The appellant testified that he had agreed with Dillingham to pay the account weekly.He stated that he gave the check to Spurrier in spite of the fact that he had no money in the bank to cover same because Spurrier told him that he would have to either have money or a check.He stated that Spurrier further told him that it would be several days before the check cleared through the bank and that the appellant could put money in the bank by the time the check cleared.All of this was denied by the State.

"Appellant raises only one question.He contends that section 2 of Article 567b of the Penal Code[Vernon's Ann.P.C.] is invalid because it violates Article 1, section 18 of the Texas Constitution[Vernon's Ann.St.], which forbids an imprisonment for debt.The basis of this contention is that the check was given for a pre-existing indebtedness, that the debt is not discharged by the giving of a bad check, and that the effect of prosecuting one under such circumstances is to imprison him for debt.It will be noted that section 2 of Article 567b provides, in part, that it shall be unlawful for any person, `with intent to defraud, to pay for any goods, service, labor or other thing of value theretofore received by giving or drawing any check * * * if such person does not have at the time * * * sufficient funds in the bank * * *'.The State takes the position that this does not violate Article 1, section 18, because it is not the nonpayment of the debt which is punished but it is the fraudulent act.The statute requires that there be a fraudulent intent.This being true, it is the fraud which is punished.Hollis v. State, 152 Ga. 182, 108 S.E. 783;People v. Khan, 41 Cal.App. 393, 182 P. 803;State v. Pilling, 53 Wash. 464, 102 P. 230, 132 Am. St.Rep. 1080;People v. Williams, 69 Cal. App. 169, 230 P. 667;Burnam v. Commonwealth, 228 Ky. 410, 15 S.W.2d 256;Ward v. Commonwealth, 228 Ky. 468, 15 S.W.2d 276.

"The question next arising is as to whether or not the evidence establishes an intent to defraud where the only thing in evidence is that the check was given for a pre-existing indebtedness.In construing statutes of this nature the courts of various states are in conflict.Some cases hold that a set of circumstances may be presented in which it is shown that, even though the check was given for a pre-existing indebtedness, there may be shown an intent to defraud by reason of the presence of accompanying facts.Other cases hold, as a matter of law that where the only thing that the evidence shows is that the check was given for a pre-existing indebtedness there is no intent to defraud.Other cases hold, as a matter of law, that an intent to defraud is shown, though the check was given for a pre-existing indebtedness.

"In the case of State v. Lowenstein, 109 Ohio St. 393, 142 N.E. 897, 35 A.L.R. 361, the Supreme Court of Ohio held that an intent to defraud could be shown to be present even though the check were given for a pre-existing indebtedness, depending upon all of the facts accompanying the transaction.In the particular case the statute construed was not exactly the same as section 2 of Article 567b, but we think that there is no substantial difference because the statute made it a crime to draw a check where the funds in the bank were insufficient and there was by such act an intent to defraud.In other words, there was no requirement in the statute, as is true in many cases, that the check be given in order to obtain something of value.Under the facts of this case a Mrs. McCarthy had been employed to make dresses for Lowenstein.At the end of a week's work Lowenstein gave her and other employees a check to cover their wages.Mrs. McCarthy continued to work for Lowenstein and the check was returned by the bank for insufficient funds.Lowenstein told her that he would make the check good.She continued to work for him.When this statement was made by the prosecuting attorney the trial court dismissed the complaint.This action was reversed by the supreme court and the supreme court held that in any case it was a question of fact as to whether or not an intent to defraud was present.There is an annotation to this caseat page 375 of 35 A.L.R.The annotation covers this particular point, beginning at page 387.

"In the case of Berry v. State, 153 Ga. 169, 111 S.E. 669, 35...