State v. Cunningham

• Decision Date: 18 April 1922
• Docket Number: (No. 4472.)
• Citation: 111 S.E. 835
• Parties: STATE. v. CUNNINGHAM.
• Court: West Virginia Supreme Court

111 S.E. 835

STATE.

v.CUNNINGHAM.

(No. 4472.)

Supreme Court of Appeals of West Virginia.

April 18, 1922.

(Syllabus by the Court.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Payment]

Error to Circuit Court, Harrison County.

G. L. Cunningham was convicted under the Worthless Check Act, and sentenced to the penitentiary, and he brings error. Reversed, and defendant discharged.

Frank M. Powell, of Clarksburg, for plaintiff in error.

E. T. England, Atty. Gen., and R. A. Blessing, Asst. Atty. Gen., for the State.

POFFBNBARGER, P. The plaintiff in error complains of a judgment imposing upon him imprisonment in the penitentiary of this state, for a period of 2 years, and founded upon a verdict of guilty of an offense under section 34 of chapter 145 of the Code (sec. 5237), known as the Worthless Check Act

As payment for an automobile sold and delivered to him, he contemporaneously drew and delivered to the vendor, J. C. Criss, his check on the Empire National Bank of Clarksburg, for $1,150, and had not sufficient money in that bank, at the time, to pay it, if any at all. A day or two later, the check was presented and payment declined for lack of funds due the drawer, but it was not protested. Immediately or shortly after the unsuccessful effort to obtain payment, the payee found the drawer and, under some sort of an understanding between them, the automobile was left in a garage from which the vendor soon afterwards obtained possession of it, without having surrendered the check. At that time, the vendee had been arrested on a warrant issued on complaint of the vendor and incarcerated in the jail, or was so arrested and imprisoned very soon afterward, on a warrant previously issued. The former testified the car had been returned and accepted in full adjustment of the controversy; and the latter that it had not been. An offer to prove, by several witnesses, an admission of the vendor that it had been taken back in full settlement was rejected by the court.

Admitted lack of protest of the check was relied upon, as the principal ground of defense, it being contended that on account of the proviso in the statute, forbidding prosecution, if payment shall be made within 20 days from the date on which drawer "receives actual notice, verbal or written, of the protest" of the check, there is no punishable offense, in the absence of protest of the check and notice thereof. A motion to direct a verdict for the defendant, based on the lack of protest, was overruled. An instruction, given at the instance of the state and omitting all reference to protest and notice thereof, and another expressly excusing or eliminating protest as an element in the offense, were given over objections. An instruction, requested by the defendant and containing the elements of protest and notice was rejected, and another similar one, refused as offered, was modified so as to limit the notice to total lack of funds or of insufficiency of funds, and given, as modified, over an objection. To all of these rulings against him, as well as to the exclusion of evidence offered to prove the car had been taken back by way of adjustment of the matters in difference between the parties, the defendant excepted.

Determination of the constituent elements of the offense created by the statute involves consideration of the proviso as well as its other parts. The analysis of the statute found in the opinion in State v. Price, 83 W. Va. 71, 97 S. E. 582, 5 A. U. R. 1247, makes this proposition apparent, and it accords with uniform authority. Bish. St. Crimes, § 65; Kent. Com. 463, note. The general purpose of a proviso is to except the clause covered by it from provisions of the statute or to qualify another portion of the statute. But it is often used as a conjunction to an independent paragraph. Ga. R. & B. Co. v. Smith, 128 U. S. 174, 9 Sup. Ct. 47, 32 L. Ed. 377. A proviso, introduced by the word "but, " was so interpreted in State v. Harden, 62 W. Va. 313, 337, 58 S. E. 715, 60 S. E. 394. The doctrine has been affirmed on numerous dccasions. Ches. & O. Ry. Co. v. Pack, 6 W. Va. 397, 403; Stanley v. Colt, 72 U. S. (5 Wall.) 119, 18 L. Ed. 502; Ches. & P. Tel. Co. v. Manning, 186 U. S. 238, 22 Sup. Ct. 881, 46 L. Ed. 1144.

The proviso here involved is not a mere exception. It is an additional clause expressing the intent and spirit of the whole section as well as effecting an exception from the operation of the preceding terms. Though it does not specifically say one who has paid a check or draft issued or delivered without funds to pay it and used in the manner and for the purpose mentioned, within 20 days after notice of protest, shall not be guilty of the offense, or that, in such case, no offense shall be deemed to have been committed, under the statute, that is what it means. Moreover, it...