State ex rel. Hastings v. Bailey

• Decision Date: 20 July 1962
• Docket Number: No. 38719,38719
• Citation: 116 N.W.2d 548,263 Minn. 261
• Parties: STATE of Minnesota ex rel. Don HASTINGS, Appellant, v. Stanley J. BAILEY, as Sheriff of Waseca County, Respondent.
• Court: Minnesota Supreme Court

Page 548

116 N.W.2d 548

263 Minn. 261

STATE of Minnesota ex rel. Don HASTINGS, Appellant, v. Stanley J. BAILEY, as Sheriff of Waseca County, Respondent.

No. 38719.

Supreme Court of Minnesota.

July 20, 1962.

Syllabus by the Court

1. Minn.St. 622.03 denounces the offense of obtaining money or property with intent to defraud by color and aid of a worthless check, which is analogous to the crime of obtaining money by false pretenses. In giving a check or draft, a party does not necessarily represent that he then has with the drawee funds out of which it will be paid, but he does represent by the act of passing it that it is a valid order for its amount and that the existing state of facts is such that it will be paid in the ordinary course of business.

2. On petition for writ of habeas corpus by a defendant who is held for further proceedings in the district court after a preliminary hearing and who asserts that the evidence adduced at the preliminary hearing does not fairly or reasonably tend to show the commission of the offense charged, the only issue to consider is whether sufficient evidence was produced to establish probable cause that the defendant is guilty of a public offense and not to determine his guilt or innocence.

3. Generally the purpose of a preliminary examination is to inquire concerning the commission of the crime charged and the connection of the accused with it in order that he may be informed of the nature and character of the offense; to determine if there is probable cause for believing the defendant guilty; and to fix bail. It is not necessary for the state to prove the defendant's guilt beyond a reasonable doubt. The state is not required to disclose at the preliminary hearing all of its evidence relating to the commission of the offense.

Daniel B. Gallagher, Waseca, for appellant.

Walter F. Mondale, Atty. Gen., St. Paul, Einer C. Iversen, County Attorney, Waseca, for respondent.

MURPHY, Justice.

This is an appeal from an order of the district court quashing a writ of habeas corpus. By criminal complaint filed in the municipal court division of the Probate Court for Waseca County the defendant was charged with felonious intent to defraud the complainant 'by color or aid of a check knowing that the drawer or maker thereof was not entitled to draw on the drawee for the sum specified therein or to order the payment of the amount therein specified' and with obtaining from the complainant property of the value of approximately $4,000 with intent to deprive the complainant of his property and appropriate the same to his own use in violation of Minn.St. 622.03 and 622.05. The complaint concludes, 'Said acts constituting the crime of grand larceny in the 1st degree by fraudulent draft.'

The defendant appeared before the judge of probate court, municipal court division, of Waseca County and demanded a preliminary hearing. At the hearing he was represented by counsel. The state introduced evidence from which the municipal court found that a crime had been committed and that there was probable cause to believe that the defendant was guilty of the offense charged. Bail was fixed in the sum of $5,000 for the defendant's appearance to answer in further proceedings in the district court. On petition of the defendant the district court issued a writ of habeas corpus. On the return date the issues thus raised were fully submitted, after which the trial court made its order quashing the writ. The appeal here is from that order.

The defendant concedes that the court has jurisdiction of the defendant and that the complaint states a public offense. The point raised here, as expressed in the appellant's brief, is 'that there is not sufficient evidence which 'fairly and reasonably tends to show the commission of the offense charged.' In other words, we contend that there is a real 'defect of proof' in this instance.' The issue presented is limited to the question of whether at the preliminary hearing there was probable cause for the committing magistrate to believe that the accused was guilty of the offense charged. ¹

We have before us a transcript of the testimony adduced at the preliminary hearing. It appears that on Tuesday, July 11, 1961, the defendant, Donald Hastings, with one Bud Mostek, appeared at the farm of the complainant, Roger Larson, and negotiated with the latter for the purchase of 20 head of cattle. A purchase price of $4,100 was agreed upon. In the course of their discussions the defendant told Larson that he had $2,700 in his pocket at the time and that his brother, for whom some of the cattle were being purchased, would furnish the balance of the money Friday, July 14, 1961. Larson was led to believe that there would be sufficient funds in the bank to cover the check when it would be deposited on the later date. Larson was advised that all of the cattle would be taken to pasture. On July 12 Mostek took delivery of the cattle and gave Larson the defendant's check for $4,100. At the time the check was delivered it was not dated. On the same day it was delivered, the defendant called Larson from Austin and requested that he insert the date of July 14, 1961. Mrs. Larson filled in the date on the check and on July 14 it was cashed. On the same day Larson was present at a nearby sales barn where he saw some of his cattle being sold. The check was returned for nonpayment. A return and protest was then executed.

1. Intent is an essential element of the offense with which the defendant was charged. Section 622.03 provides:

'Every person who shall wilfully, with intent to defraud by color or aid of a check, draft, or order for the payment of money or the delivery of property, when such person knows that the drawer or maker thereof is not entitled to draw on the drawee for the sum specified therein, or to order the payment of the amount or delivery of the property, although no express representation is made in reference thereto, shall obtain from another any money or property, shall be guilty of stealing the same, and punished accordingly.'

In State v. Cunningham, 257 Minn. 31, 99 N.W.2d 908, we said that the offense denounced by this statute is analogous to the crime of obtaining money by false pretenses. In State v. Johnson, 77 Minn. 267, 79 N.W. 968, the defendant was indicted for passing a worthless check under G.S.1894, § 6711, which is substantially identical to § 622.03. We there stated (77 Minn. 268, 79 N.W. 969):

'The gist of the offense defined by this statute is the obtaining, with intent to defraud, the money or property of another by false pretenses; that is, by color or aid of a...