State v. G. L. Cunningham
| Decision Date | 18 April 1922 |
| Citation | 90 W.Va. 806 |
| Parties | State v. G. L. Cunningham |
| Court | West Virginia Supreme Court |
Statutes While a Proviso May be an Exception, it May Also be an Additional Paragraph or Clause Performing a More Extensive Function.
Although primarily the office of a proviso' in a statute is exception from its operation, of something that would otherwise be included therein, it is often an additional paragraph or clause performing a much more extensive and impoi'tant function. (p. 809).
Same A Penal Statute Proviso Restraining the Terms of the Penal Clause Requires Consideration of Both Clauses for Construction.
A proviso in a penal statute, which, to have full force and effect in its operation, must necessarily qualify and restrain the meaning of the terms of the main or penal clause, goes beyond the mere function of exception in the ordinary sense of the term, and the meaning of the terms of the main or penal clause is to be deteimiined by consideration of both clauses. (p. 809).
Same Penal Clause of Statute Must be Construed Strictly and Proviso Given Liberal Construction.
In such case, the statute as a whole must be construed favorably to the accused, by application of the rule of strict construction to the penal clause and the rule of liberal construction to the proviso. (p. 810).
False Pretenses Worthless Check Statute Does Not Make Defendant Guilty Where he Paid Check Protested for Insufficient Funds Within 20 Days.
Properly interpreted, sec. 34 of ch. 145 of the Code, known as the worthless check act, does not make one who has obtained credit, money, goods or other property of value, by issuance and delivery of a check or draft, in exchange therefor, without funds or sufficient funds on deposit in the drawee bank, to pay the same, guilty of any offense, if he has paid the same within twenty 'days from his receipt of actual notice, verbal or written, of the protest of such check or draft. (p. 809).
Same Protest of Draft or Check for Nonpayment and Notice Thereof is Necessary Under Worthless Check Statute. Nor can there be guilt of any offense under said statute, in the absence of protest of such check or draft for nonpayment, within a reasonable time after receipt thereof, and actual notice of such protest. (p. 811).
6. Same Accord and Satisfaction Made Within 20 Days Held "Payment" Within the Proviso of Worthless Check Statute.
An accord and satisfaction respecting a check issued and delivered under the circumstances and for the purpose mentioned, in said statute, extinguishing liability thereon, made within twenty days from the receipt of notice to the drawer, of non-payment thereof, amounts to payment within the meaning of the proviso in said statute. (p. 811).
7. Same Rejection of Evidence to Prove Accord and Satisfac-
tion Under Worthless Check Act Held Error.
On the trial of one indicted under said statute, it is error to reject evidence tending to prove an accord and satisfaction so made. (p. 811).
8. Criminal Law Where the Court of Appeals Finds that Ac-
cused Can. by no Possiblity, be Convicted for the Offense Charged, he will be Discharged Without Day.
If, on a writ of error to a judgment in a criminal case, the appellate court finds that, by no possibility, can the accused be convicted on the indictment by which he is charged with the alleged offense, the judgment will be reversed, the verdict set aside and a judgment entered, that he go thereof without day. (p. 811).
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, for plaintiff in error. E. T. England, Attorney General and R. A. Blessing, Assistant Attorney General, for the State.
poffenbabger, president:
The plaintiff in error complains of a judgment imposing upon him imprisonment in the penitentiary of this State, for a period of two years, and founded upon a verdict of guilt of an offense under sec. 34 of ch. 145 of the Code, 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 $1,150.00 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 twenty 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,...
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