State v. Augustine
| Decision Date | 03 October 1933 |
| Docket Number | 7638. |
| Citation | 171 S.E. 111,114 W.Va. 143 |
| Parties | STATE v. AUGUSTINE. |
| Court | West Virginia Supreme Court |
Submitted September 19, 1933.
Syllabus by the Court.
Giving of worthless check is, in itself, "false pretense" giving of check being representation that drawer has sufficient money with drawee (Code 1931, 61-3-24).
Giving of check, with request to withhold presentment for one week constituted, under circumstances, "false representation" within false pretense statute (Code 1931, 61-3-24).
1. The giving of a check is, in itself, a representation that the accused has money or credit with the drawee to the amount of its face value.
2. A case in which the giving of a check, with request to withhold presentment for one week, amounted, under the circumstances to a false representation, within the meaning of Code 1931 61-3-24.
Error to Circuit Court, Preston County.
John D Augustine was convicted of obtaining money by false pretenses, and he brings error.
Affirmed.
J. V. Gibson, of Kingwood, for plaintiff in error.
Homer A. Holt, Atty. Gen., and Kenneth E. Hines, Asst. Atty. Gen. (R. H. Casto, of Charleston, of counsel), for the State.
John D. Augustine, a resident of Addison, Pa., was tried and convicted in Preston county on the charge of obtaining property by false pretenses. He prosecutes error to a judgment whereby he was sentenced to serve two years in the state penitentiary.
According to state's evidence, it is shown that the defendant, on July 20, 1926, contracted with one Floyd Cale and Eben Liston, to take twenty-two head of three year old cattle, some time between October 1st and 15th, at a stipulated price per hundred pounds, at the time making a cash payment thereon of $50 to hold the bargain, and agreeing to pay the remainder in cash when the cattle were actually taken up and weighed; that defendant later, because of market conditions, requested Cale and Liston to let him have the cattle on September 21st; that the cattle on that day were taken to nearby scales and weighed; that nothing was said in regard to the defendant's intention not to pay cash, or his inability to do so, until the cattle had been driven some distance to the forks of the road, where they were commingled with other cattle which were then driven off by two of defendant's helpers; that after the cattle were driven off, the defendant, for purpose of settling up, executed two checks on the Citizens' National Bank of Meyersdale, Pa., for $927.46 and $900, respectively, and, upon presentation, Cale and Liston were requested to hold one check for one week and the other for two weeks, the respective dates of presentment being noted in the left-hand lower corner of each check; that Cale and Liston were admonished not to be uneasy, that said checks would be satisfied, if presented as indicated thereon--that money would be in the bank for the purpose of meeting them; that the first check was deposited in the Bruceton Bank, Bruceton, W. Va., where Liston did his banking business, on September 29, 1926; that shortly thereafter a card, bearing date October 3, 1926, was received asking that presentment of the second check be held up for an additional week; that on the following evening notice was received of protest of the first check on October 4th, by drawee bank, for want of funds; that Cale and Liston made a trip to defendant's home in regard to the matter of payment of the protested check on the 7th, and were given a note as collateral; that after their return home a letter was received, dated October 12th, inclosing a note covering the second check, and requesting that Liston try to get one of the notes discounted at the latter's bank for a 30-day period; that defendant some time afterwards paid $500 on account of first check, the balance remaining unsatisfied at the time of the trial; and that defendant made an assignment of all his property on December 8, 1926.
The defendant attempts to offset any criminal intent by evidence to the effect that at the time he contracted for the cattle he had real property worth $42,000, although it brought only $21,000 ($2,000 in excess of mortgage indebtedness thereon) when sold on December 9, 1926, by the assignee; that his entire indebtedness was not more than $31,000 to $38,000; and that if Cale and Liston had not pressed him, his other creditors would not have come in and made an assignment necessary. He admits that he did not have sufficient funds in bank on the date of the issuance of the checks; that he never had enough to meet outstanding checks; that he had less than enough to pay the first check on the date it reached the drawee bank, and that at the end of that day his balance was only thirteen cents; that the only deposit made in that bank thereafter was in the amount of $75, the money for the cattle being deposited in another bank; that the cattle which had been commingled were sold after the first check had been protested.
The chief issue raised on this writ of error has to do with whether or not the defendant could, under the foregoing facts, be found guilty of the offense charged.
According to Code 1931, 61-3-24, any person who obtains from another by any false pretense, token, or representation, with intent to defraud, money, goods, or other property which may be the subject of larceny, shall be guilty...
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