Hindman v. State, 51194

• Decision Date: 09 January 1980
• Docket Number: No. 51194,51194
• Citation: 378 So.2d 663
• Parties: Dan HINDMAN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 663

378 So.2d 663

Dan HINDMAN v. STATE of Mississippi.

No. 51194.

Supreme Court of Mississippi.

Jan. 9, 1980.

Fox & Gowan, Marc A. Biggers, Jackson, for appellant.

A. F. Summer, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SMITH, P. J., and WALKER and BROOM, JJ.

SMITH, Presiding Justice, for the Court:

Dan Hindman was convicted in the Circuit Court of the First Judicial District of Hinds County under an indictment charging him with obtaining valuable services by false pretenses under the "bad" check statute, Mississippi Code Annotated section 97-19-55 (1972). He was sentenced to three years imprisonment with two years suspended and fined $1,000. He has appealed, assigning several alleged errors for reversal.

A Mrs. Denson agreed to emcee a bridal show for Hindman at the Jackson Hilton Hotel for a fee of $300.00. The show was held and Mrs. Denson duly acted as mistress of ceremonies. After the show was over and Mrs. Denson's services had been fully performed, Hindman gave her a check for the $300.00 fee agreed upon. Payment of this check was declined by the bank upon which it was drawn because Hindman did not have sufficient funds on deposit with which to pay it.

Repeated efforts were made by Mrs. Denson and her attorney to collect the $300.00 and even after Hindman had been indicted and the setting of the present case had been made, Mrs. Denson's attorney stated:

We were we were willing to accept the money, I believe, it would be a true statement that Mrs. Denson would have accepted the money and dismissed this entire thing as of 9:00 o'clock this morning.

Leaving aside the fact that it appears Hindman's prosecution was one of the means by which collection was sought to be enforced, the prosecution was founded upon Mississippi Code Annotated section 97-19-57 (1972) which amends Mississippi Code Annotated section 2153 (1942).

Pollard v. State, 244 So.2d 729 (Miss.1971) was decided under the former statute, but the principles announced in it are valid and relevant here. In Pollard, this Court said:

The one indispensable element of this offense is the receiving of value for the check at the very time it is delivered. In other words, the seller parts with something of value on the belief that the check is good at that particular time. Kitchens v. Barlow, 250 Miss. 121, 164 So.2d 745 (1964); Broadus v. State, 205 Miss. 147, 38 So.2d 692 (1949); Granada Coca Cola Co. v. Davis, 168 Miss. 826, 151 So. 743 (1934).

The gravamen of the offense was succinctly stated in Jackson v. State, 251 Miss. 529, 170 So.2d 438 (1965):

"So an essential element of the offense under section 2153 is the making and delivering of the check to another person for value, And thereby obtaining from such other person money, goods, or other property of value." (Emphasis added). 251 Miss. at 531, 170 So.2d at 439.

It would appear that the transaction between Pollard and B & M Motors was a credit sale, and not an exchange for value based on the belief that Pollard's check was good at that particular moment. (244 So.2d at 730).

And further:

This Court said in Grenada Coca Cola Co., et al. v. Davis, 168 Miss. 826, 151 So. 743 (1934):

"The so-called bad check law does not cover the obtaining of goods where the goods had already been delivered, had passed completely out of the possession of the seller and away from his hands and premises in a previously completed transaction or transactions, Although those transactions may have been at previous hours on the same day. There must be an exchange for the check at the time of delivery. The bad check law is severe enough without extending it by construction so as to include past deliveries, to say nothing of the question of the constitutional validity of such a statute if it were so construed." (Emphasis added). . . . (244 So.2d at 731).

In enacting Mississippi Code Annotated sections 97-19-55 and 97-19-57 (1972), it must be assumed that the Legislature was aware of the decision in Pollard as well as of section 30 of the Mississippi Constitution prohibiting imprisonment for debt, and carefully drafted the statute so as not to render it unconstitutional by transgressing this constitutional provision.

The present statute, section 97-19-55, Mississippi Code Annotated (1972), is in the following language:

It shall be unlawful for any person with fraudulent intent to make, draw, issue, utter or deliver any check, draft or order for the payment of money drawn on any bank, corporation, firm or person for The purpose of obtaining money, or any article of value, or to obtain services except payment or payments on past due accounts, knowing at the time of making, drawing, issuing, uttering or delivering said check, draft or order that the maker or drawer, has not sufficient funds in, or on deposit with, such bank, corporation, firm or person, for the payment of such check, draft, or order in full, and all other checks, drafts or orders upon such funds then outstanding. (Emphasis added).

It is to be noted that, in order to commit the offense proscribed, the "bad" check must have been given for the "purpose of obtaining money, or any article of value, or to obtain services except payment or payments on past due accounts."

In other words, reliance upon the check must have been the efficient inducement which moved the party receiving it to part with something of value, including valuable services, relying upon its validity.

Here, the bridal show had been concluded and it is admitted that Mrs. Denson had already completed her services before the check was written or delivered. The check was not the inducement by means of which Mrs. Denson's services were obtained. The services were performed and completed before the check ever came into existence. The check, therefore, was given in payment of the debt which Hindman had incurred and the transaction does not come within the definition of the crime proscribed in Mississippi Code Annotated section 97-19-55 (1972). Moreover, it should be noted that the law does not look with favor upon the use of the criminal laws as a means of coercing payment of a debt.

In view of the conclusion we have reached it becomes unnecessary to consider the other errors assigned for reversal.

REVERSED AND APPELLANT DISCHARGED.

PATTERSON, C. J., ROBERTSON...