State v. Eikelberger
| Decision Date | 26 December 1951 |
| Docket Number | No. 7740,7740 |
| Citation | 29 A.L.R.2d 1176,239 P.2d 1069,72 Idaho 245 |
| Parties | , 29 A.L.R.2d 1176 STATE v. EIKELBERGER. |
| Court | Idaho Supreme Court |
T. E. McDonald, Arco, and E. G. Elliott, Boise, for appellant.
Robert E. Smylie, Atty. Gen., John R. Smead, Asst. Atty. Gen., and C. V. Boyatt, Prosecuting Atty. of Butte County, Arco, for respondent.
The appellant was charged with and convicted of a felony, that is, the issuance of his check in the sum of $46.44, with intent to defraud and without sufficient funds in or credit with the Continental State Bank of Boise, Idaho, upon which it was drawn to pay the same when presented. From the judgment of conviction, he appeals.
Appellant generally assigns as errors the insufficiency of the evidence to support the verdict or judgment, and that the judgment is contrary to the law, and also that the court erred in giving a portion of Instruction No. 13.
It is urged that the evidence of the state proved that the instrument issued was a postdated check and hence not within the purview of the statute. Sec. 18-3106, I.C., Chap. 111, S.L. 1949, at page 201.
The pertinent portions of said section, as amended, read as follows:
The evidence with reference to the issuance of the check is in conflict in many material respects. The check was drawn in payment of merchandise purchased at the store of one Ralph Ellison in Arco, Idaho, from Gerrold Squires, a clerk in said store. The check was dishonored because appellant had no account in said bank. (State's Exhibit A) Squires testified that he had business with the appellant on or about April 21, 1950; the check in question was dated April 21, 1950; when Squires was asked upon direct examination when he received the check he replied: 'Well, it must have been before the 21st, that's the date on the check.' Mr. Ellison, when asked on the direct examination when he first saw the check, replied: 'Well, it was the 21st of April--was when it was given to Mr. Squires.' The appellant testified that he purchased the merchandise on April 20, 1950 and gave the check in question to the clerk on that day but dated it April 21, 1950 and asked that it be held for a few days; Squires under cross-examination testified that he had no conversation with appellant with reference to the request to hold the check for a few days.
The appellant testified upon direct examination that at the time he requested Mr. Squires to hold the check for a few days he also told him to send another check which he had previously given to Mr. Ellison, and which had been dishonored, back to the bank in Boise; this was also unequivocably denied by Squires.
An officer of the bank testified that during the month of April 1950 appellant did not have a deposit in the bank or a credit with the bank to the amount of the check in the sum of $46.44.
From the evidence as detailed above it is apparent that there is sharp conflict with reference to the date the merchandise was purchased and as to whether or not the check was issued on April 20 or April 21 of that year; likewise, there exists irreconcilable conflict as to whether or not there was any arrangement to hold the check for a few days; these conflicts are exclusively within the province of the jury to resolve with the right to believe or disbelieve all of the testimony of any witness or witnesses, and especially the testimony of an interested witness. State v. Eikelberger, 71 Idaho 282, 230 P.2d 696 and cases therein cited.
It is urged that Squires, a witness for the state, on direct examination testified in effect that the check was in fact postdated and the state is bound by that proof; assuming, but not deciding, that the testimony of Squires is not susceptible to any other interpretation than that he did testify that the check was dated a day following the date of its receipt, then there is directly presented the question of whether or not a postdated check comes within the condemnation of Sec. 18-3106, I.C., Chap. 111, S.L. 1949, page 201, supra.
The authorities are in conflict on the question of whether or not the issuance of a postdated check, without sufficient funds in or credit with the bank to cover payment when presented, comes within the...
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