Driskell v. State

• Court: Georgia Court of Appeals
• Citation: Driskell v. State, 47 Ga.App. 741, 171 S.E. 389 (Ga. App. 1933)
• Decision Date: 20 October 1933
• Docket Number: 23120.
• Parties: DRISKELL v. STATE.

171 S.E. 389

47 Ga.App. 741

DRISKELL v. STATE.

No. 23120.

Court of Appeals of Georgia, First Division

October 20, 1933

Syllabus by the Court.

Evidence indicating check was given for past-due indebtedness without intent to defraud held insufficient to sustain conviction under bad check law (Laws 1924, p. 194).

The evidence failed to sustain the conviction of the defendant under the bad check law of 1924 (Ga. L. 1924, p. 194).

Error from Superior Court, Hall County; B. P. Gaillard, Jr., Judge.

Clyde Driskell was convicted of an offense, and he brings error.

Reversed.

Joe Hill Smith, of Atlanta, for plaintiff in error.

Robert McMillan, Sol. Gen., of Clarkesville, for the State.

MacINTYRE Judge.

Clyde Driskell was convicted under an indictment charging that "with intent to defraud H. H. Rogers," the accused did "make, draw, utter, and deliver a certain check *** for the payment of *** $15, same bearing date of the 1st day of November, 1931, upon the Citizens' Bank, same being a bank and depository in this State, the said defendant knowing at the time of such making *** and delivery of said check *** that he, the said defendant, the maker and drawer, had not then and there sufficient funds in or credit with said bank *** for the payment of said check *** in full upon its presentation."

In the first place, we hold that there is no merit in the motion to dismiss the bill of exceptions, and we overrule the motion.

Since the brief of counsel for the plaintiff in error neither insists upon nor mentions any question sought to be raised in the record except that the verdict was "contrary to the evidence," we shall confine ourselves to the general grounds of the motion for a new trial.

The state introduced in evidence the check described in the indictment, with the notation "insufficient funds" thereon. H. H. Rogers, the prosecutor, sworn for the state testified: "The defendant *** issued and gave me this check in this case in Hall County on the 1st day of November 1930. The defendant and I had been in the automobile repair business together, and this check represented what he owed me. It was given me on Saturday afternoon, and I, in turn indorsed it over to Hubert Vickers. On *** November 3, 1930, the check was placed by Vickers in another bank at Gainesville, and in due course was presented to the bank upon which it was drawn, and there was not sufficient funds with which to meet it upon presentation. It has never been made good, and I had to pay Vickers for it." The foregoing was all the evidence adduced by the state.

Clay Driskell, sworn for the defendant, testified: "that he was present when H. H. Rogers and the defendant, his brother, entered into the agreement of partnership, and *** that the agreement was that they were to do automobile repairs, and that Driskell, the defendant, was to receive money and pay over to H. H. Rogers his part of the money when the money was collected."

The gist of the defendant's statement to the jury was: "H. H. Rogers and I entered into a partnership agreement to do automobile repairs, and I was to receive the money and pay him for his part of the money when it was collected. Some few days after *** we had dissolved the partnership Rogers came back to me and said he had to have some money to purchase some groceries. I told him I did not have any money, and he asked me to give him a check for $15. I told him I did not have any funds in the bank and that my check would not be good. He said that was all right--he could use it with his grocer and take it up when it came back, and took the check under the representations made by me that I had no money in the bank. I did have money in the bank at the time I gave the check and for several days afterwards, but I knew that I had several other obligations that had to be met and I could not cover this check at the time, and only gave it to him with the understanding that it would not be presented to my bank until some time in the future. ***"

The defendant also introduced in evidence a statement of his bank account with...