Ferrell v. State

• Decision Date: 22 September 1966
• Docket Number: No. 30873,30873
• Citation: 247 Ind. 535,219 N.E.2d 804
• Parties: Robert D. FERRELL, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 804

219 N.E.2d 804

247 Ind. 535

Robert D. FERRELL, Appellant, v. STATE of Indiana, Appellee.

No. 30873.

Supreme Court of Indiana.

Sept. 22, 1966.

Edgar A. Grimm, Grimm, Grimm, Purdy & Hanson, Kendallville, for appellant.

John J. Dillon, Atty. Gen., Donald R. Ewers, Asst. Atty. Gen., for appellee.

RAKESTRAW, Chief Justice.

This is an appeal from a conviction for issuing a fraudulent check. The appellant was president of Fairway Homes, Inc. Apparently the corporation was gradually getting involved in financial difficulties. At around the time of the alleged offense, the appellant was writing numerous checks and making some deposits. The check out of which this charge arises was made to Radio Equipment Company, Inc., in the amount of $3,256.59. When the check was presented for payment, there were not sufficient funds.

The appellant was charged by grand jury indictment which was filed on June 21, 1962. The pertinent part of the indictment reads as follows:

'* * * Robert D. Ferrell, did then and there unlawfully and feloniously with the intent to defraud by obtaining good and lawful currency of the United States of America in the sum of Three-Thousand Two Hundred Fifty-Six and 59/100 ($3,256.59) Dollars, the said Defendant did make, draw, utter and deliver to Radio Equipment, Co., Ind., South Bend, Indiana, a certain check for the payment of money * * *' (Our emphasis.)

On September 24, 1962, the appellant waived arraignment and entered his plea of not guilty to that indictment.

On November 6, 1963, the day the appellant's first trial began, the court, at the request of the appellee, entered an amendment to the indictment. The pertinent part of the indictment, as so amended, reads as follows:

'* * * Robert D. Ferrell, did then and there unlawfully and feloniously with the intent to defraud by obtaining payment of an obligation to Radio Equipment, Co., Inc., in the sum of THREE THOUSAND TWO HUNDRED FIFTY SIX and 59/100 DOLLARS ($3,256.59), the said Defendant did make, draw, utter and deliver to Radio Equipment, Co., Inc., South Bend, Indiana, a certain check for the payment of money * * *' (Our emphasis.)

After the conclusion of the appellant's first trial, he was found guilty of 'obtaining money by fraudulent check. Later his motion for new trial was sustained.

On January 21, 1965, the defendant was again arraigned, and as shown by the court record entered a plea of 'not guilty to the offense of obtaining money by fraudulent check as charged in the indictment.' He was later tried again and on May 14, 1965 was found 'guilty of the offense of obtaining money by fraudulent check, as charged in the indictment.' Judgment was entered by the trial court on September 13, 1965, at which time the court adjudged the appellant guilty 'of the offense of obtaining money by fraudulent check as charged in the indictment,' and sentenced him to the Indiana State Prison for a period of not less than one year nor more than five years.

From the uncontroverted evidence for the prosecution, it appears that the check was issued for the purpose of paying an obligation of Fairway Homes, Inc. to the Radio Equipment Co., Inc., which obligation was made up of an account incurred over a period of time. The appellant himself submitted no evidence.

The only error relied upon by the appellant is the overruling of his motion for new trial. In his brief, he argues that the finding of the court was not sustained by sufficient evidence and was contrary to law.

The indictment charged the appellant with issuing a fraudulent check with the intent to defraud by obtaining good and lawful currency of the United States of America. The evidence, insofar as it tended to prove an offense, tended to prove that the appellant issued a fraudulent check in the payment of an obligation. The indictment was apparently brought under Burns' Ind.Stat.Anno. § 10--2105 (1956 Repl.). This section of the statute reads as follows:

'Whoever with intent to defraud by obtaining money, merchandise, property, credit, or thing of value, although no express representation is made in reference thereto, or who, in the payment of any obligation, shall make, draw, utter or deliver any check, draft or order for the payment of money upon any bank, depository, person, firm or corporation, 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, depository, person, firm or corporation, for the payment of such check, draft or order in full upon its presentation, shall, on conviction, be imprisoned in the state prison for not less than one (1) nor more than ten (10) years: Provided, however, That where the money, merchandise, property, or thing of value obtained is less than...