Hughes v. Commonwealth

• Decision Date: 11 June 1929
• Citation: 230 Ky. 37
• Court: United States State Supreme Court — District of Kentucky
• Parties: Hughes v. Commonwealth.

230 Ky. 37

Hughes v. Commonwealth.

Court of Appeals of Kentucky.

Decided June 11, 1929.

False Pretenses. — Where defendant gave check in part payment of debt, with instructions to payee to hold check until certain day, when he thought he could have funds in bank to meet it, and payee accepted check on those terms, and presented check after day specified, but payment was refused, defendant did not violate Ky. Stats., sec. 1213-a, commonly designated the "cold check' statute, since crime is not committed unless check was issued with intent to defraud.

Appeal from Scott Circuit Court.

S. JEWELL RICE for appellant.

J.W. CAMMACK, Attorney General, and SAMUEL B. KIRBY, JR., Assistant Attorney General, for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE McCANDLESS.

Reversing.

C.W. Hughes appeals from a judgment of conviction sentencing him to one year in the penitentiary for a violation of section 1213a, Ky. Statutes, commonly designated the "cold check" statute.

The facts show that early in September, 1927, Hughes purchased and received some hay from Dan P. Scott. Payment was not made at the time, and on September 24th, Scott undertook to collect the bill. Hughes had no cash, but offered Scott a check for $100 in part payment, telling him that he did not have sufficient funds on deposit to pay it, but that, if Scott would hold the check until the following Monday (the 24th being on Saturday), he thought he could have the funds in the bank to meet it. Scott accepted the check on those terms, and on the Wednesday following presented the check to the bank for payment, which was refused. Hughes was notified of the default, and, not making payment within 20 days thereafter, this prosecution followed.

In the recent cases of Burnam v. Com., 228 Ky. 410, 15 S.W. (2d) 256, and Ward v. Com., 228 Ky. 468, 15 S. W. (2d) 276, it was held that chapter 62, Acts of 1926, and chapter 41, Acts of 1928, purporting to repeal and re-enact chapter 8 of the Acts of 1914, now section 1213a, Ky. Statutes, are both invalid and void. In the later case it was also held that the original act, chapter 8, Acts of 1914, was not affected by the invalid amendments, and that it remains in effect. It reads:

"That any person who with intent to defraud shall make, or draw or utter or deliver any check, draft or order for the payment of money upon any bank or other depository, knowing at the time of such making, drawing, uttering or delivery that the maker or drawer has not sufficient funds in such bank or other depository for the payment or such...