Herron v. State

• Decision Date: 08 July 1918
• Citation: 79 So. 289,118 Miss. 420
• Court: Mississippi Supreme Court
• Parties: HERRON v. STATE

79 So. 289

118 Miss. 420

HERRON v. STATE

Supreme Court of Mississippi

July 8, 1918

March 1918

Division A

APPEAL from the circuit court of Warren county, HON. E. L. BRIEN Judge.

Joe Herron was convicted of securing money on a check knowing that he had no funds to pay it, and appeals.

On the following indictment the defendant Joe Herron was tried and convicted and sentenced to serve two years in the state penitentiary:

State of Mississippi, Warren County. Circuit Court, March Term 1918. The grand jurors of the state of Mississippi, elected summoned, impaneled, sworn and charged to inquire in and for the body of Warren county, state of Mississippi at the term aforesaid, in the name and by the authority of the state of Mississippi, upon their oaths present that one Joe Herron, late of the county aforesaid, on the 1st day of April, A. D. 1918, with force and arms, in the county aforesaid, and within the jurisdiction of this court then and there did unlawfully and feloniously obtain from Jones Smokehouse, a corporation, the sum of twenty-five dollars, lawful money of the United States, by means of giving to the said Jones Smokehouse a check drawn on the First National Bank of Birmingham, Alabama, he, the said Joe Herron, knowing at the time of drawing said check, and uttering and delivering the same, that he had not sufficient funds with the said First National Bank of Birmingham, Alabama, to pay said check upon its presentation, and that said check was presented by said payee within thirty days after the drawing of said check, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Mississippi.

Reversed and remanded.

A. A. Chany, for appellant.

I think the court was in error in refusing to permit defendant to state whether or not he had any intention of defrauding any one when he obtained the money. He was asked this question as shown on page 38 of the record, and the court sustained an objection to it. Unless he so obtained the money, under the very terms of the statute, he is not guilty of any offense.

The indictment does not charge that the defendant obtained the money with intention to defraud any one. The courts all hold that indictments upon statutes must pursue the precise language of the statute. If this appellant did not obtain the money with the intention at the time of defrauding Jones Smokehouse, then he is certainly guilty of no offense. Unless he is charged in the indictment with so obtaining it, surely the intention will not be...