Hoyt v. Hoffman

• Decision Date: 28 June 1966
• Docket Number: No. 5052,5052
• Parties: Charles E. HOYT, Appellant, v. Howard HOFFMAN, Sheriff, Ormsby County, State of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 232

416 P.2d 232

82 Nev. 270

Charles E. HOYT, Appellant, v. Howard HOFFMAN, Sheriff, Ormsby County, State of Nevada, Respondent.

No. 5052.

Supreme Court of Nevada.

June 28, 1966.

Stewart & Horton and Wilbur H. Sprinkel, Reno, for appellant.

Theodore H. Stokes, Ormsby County Dist. Atty., Carson City, for respondent.

OPINION

ZENOFF, District Judge.

Appellant, Hoyt, charged with issuing a check without sufficient funds, ¹ appeals from a denial of a petition for a writ of habeas corpus.

It was stipulated that Hoyt, a retailer, owed Lester Kirn the sum of $1,376.43 for meat purchased from Kirn, who was in the wholesale meat business. The amount was carried by Kirn as an open account for almost a year until November 9, 1964, when Hoyt gave Kirn a check for $773.16, apparently to apply on account. The check was not honored by the bank for lack of funds, and a month later Kirn caused a criminal complaint to issue against Hoyt alleging violation of NRS 205.130(1).

Hoyt petitioned for a writ of habeas corpus alleging that the bad check statute was not applicable to checks issued in payment of pre-existing debts. The trial court rejected this contention.

1. Where a so-called cold check statute makes provision only for a drawer who receives something of value in exchange for his check, it is not applicable for pre-existing debt situations. Such statutes are designed to charge a defendant who obtains a benefit as a result of the check. Jackson v. State, 251 Miss. 529, 170 So.2d 438 (1965); Harris v. Florida, 123 So.2d 752 (Fla.App.1960); State v. McLean, 216 La. 670, 44 So.2d 698 (1950). The weight of authority is in accord. 59 A.L.R.2d 1159 (1956).

In this case Hoyt did not receive a benefit as a result of making and delivering the check to his creditor, Kirn, nor was Kirn's position improved or damaged. The pre-existing debt was not affected by Hoyt's conduct in giving a worthless check. The legislature did not intend to make it a crime to issue a worthless check absent damage or injury to the payee thereof. Such damage or injury does not exist when the check is given for a pre-existing debt.

2. Attention is directed to Subsection 3 of NRS 205.130. ² That portion of the bad check statute contains language referring to the issuance of a check 'in payment of obligation.' It is argued that 'payment of obligation' includes pre-existing obligation. We do not agree. That phrase relates to an obligation created concurrently with the drawing of the check and not to debt already existing. In any event, the substantive crime is defined in Subsection Therefore, we hold that NRS 205.130(1) does not apply to checks given for pre-existing debts.

Reversed. The complaint is ordered dismissed, the appellant released from custody, and the bail bond exonerated.

THOMPSON and COLLINS, JJ., concur.

1 NRS 205.130(1). 'Every person who for himself, or as the agent or representative of another, or as an officer of a corporation, willfully, with intent to defraud, shall make, pass, utter or publish any bill, note, check or other instrument in writing for the payment of money or for the payment of any labor claim or claims, or delivery of other valuble property, directed to or drawn upon any...