State v. Griggs

• Decision Date: 12 February 1951
• Docket Number: No. 42199,No. 1,42199,1
• Citation: 236 S.W.2d 588,361 Mo. 758
• Parties: STATE v. GRIGGS. *
• Court: Missouri Supreme Court

Page 588

236 S.W.2d 588

361 Mo. 758

STATE v. GRIGGS.

No. 42199.*

Supreme Court of Missouri, Division No. 1.

Feb. 12, 1951.

Frieze & Crandall, Carthage, for appellant.

J. E. Taylor, Atty. Gen., Arvid Owsley, Asst. Atty. Gen., for rsepondent.

VAN OSDOL, Commissioner.

Defendant was convicted of obtaining money and property, with the intent to cheat and defraud, by means of a check drawn on a bank in which he knew he had no funds. Section 4694, R.S.1939, Mo.R.S.A. Sec. 4694, Section 561.450, R.S.1949. His punishment was assessed at imprisonment in the state penitentiary for a term of two years. He has appealed from the ensuing judgment.

Upon this appeal defendant-appellant assigns errors of the trial court in overruling defendant's motion to quash the information; in overruling defendant's request for a directed verdict of acquittal; and in the giving and refusal of instructions.

There was substantial evidence introduced tending to show that defendant, Frank Griggs, Jr., on September 24, 1949, appeared at the store of Gene Taylor and Fred Atkinson, who were partners doing business as White Way Feed and Oil Company at Joplin. Defendant bought fifty pounds of egg mash worth $1.95 from a clerk at the store. Defendant produced a check dated September 24th for $20 signed by himself payable to 'Cash' and drawn on the First National Bank of Joplin. Defendant asked the clerk, DeWeese, 'if we could cash the check.' DeWeese took the check to the partner-employer, Atkinson, who thought the 'signature looked familiar and also the man looked familiar,' so Atkinson told the clerk to go ahead and cash the check. Defendant made no representation (verbal or otherwise, aside from or extrinsic to the check) that he had a bank account, or that the check was good and would be paid upon presentation at the bank. Defendant was given $18.05 in cash, and defendant told DeWeese that some of defendant's relatives would later come by and get the egg mash. Defendant got into a truck and drove away. He was apprehended later the same day by the city police officers. Defendant, who lived in Oklahoma, was then in a truck 'headed south' on the way out of town. On that day, September 24th, defendant had no account and no funds on deposit with the First National Bank of Joplin. When arrested, defendant said that he had given a 'bad check'; that he had no money in the bank; and that he 'didn't have' a bank account.

In our opinion the evidence we have summarized is sufficient to sustain a conviction for violation of Section 561.450, supra, which section provides that 'Every person who, with the intent to cheat and defraud, shall obtain * * * from any other person, or persons, any money, property or valuable thing whatever * * * by means of a check drawn, with intent to cheat and defraud, on a bank in which the drawer of the check knows he has no funds * * * shall be deemed guilty of a felony * * *.'

The information was sufficient in substantially following the quoted language of the Section 561.450, supra, by charging that 'Frank Griggs, Jr., did then and there with intent to cheat and defraud, unlawfully and feloniously obtain from Gene Taylor and Fred Atkinson, d/b/a White Way Feed and Oil Company, merchandise of the value of Two ($2.00) Dollars, and Eighteen ($18.00) Dollars in currency of the United States of America, of the value of Eighteen ($18.00) Dollars, by use of and by means of a check given on the First National Bank of Joplin, Joplin, Missouri, a banking institution duly organized and incorporated under the Laws of the United States of America, in the amount of Twenty ($20.00) Dollars, in which said bank the said Frank Griggs, Jr., at the time of the drawing and uttering said check had no account, all of which he, the said Frank Griggs, Jr., well knew * * *.' However, the information additionally charged that 'and the said Frank Griggs, Jr., did then and there, with intent to cheat and defraud, feloniously represent and pretend that he had an account in said bank, and that said check would be paid, and the said Gene Taylor and Fred Atkinson * * * believing and relying upon said representations and being deceived thereby did give to the said Frank Griggs, J., the said merchandise (and money) * * *.'

The trial court by its principal Instruction No. 1 advised the jury as follows, 'The Court instructs the jury that if you find and believe from the evidence in this case beyond a reasonable doubt that the defendant, Frank Griggs, Jr., on or about the 24th day of September, 1949, did then and there feloniously draw, pass, utter and publish as true a certain false and bogus check drawn on the First National Bank of Joplin, Missouri, a banking institution duly organized and incorporated under the laws of the United States of America, in the amount of $20.00, in which said bank the said Frank Griggs, Jr., at the time of drawing, passing, uttering and publishing said check had no account, and delivered the same to Gene Taylor and Fred Atkinson, doing business as the White Way Feed & Oil Company, in exchange for merchandise and money, then and there knowing the said check to be falsely made, forged and counterfeited, and if you further find from the preponderance of the greater weight of the evidence and beyond a reasonable doubt that the said Frank Griggs, Jr., did then and there, with the intent to cheat and defraud, feloniously represent and pretend that he had an account in said bank and that said check would be paid, and the said Gene Taylor and Fred Atkinson believing and relying upon said representations, if any, and being deceived thereby, did give the said Frank Griggs, Jr., said merchandise of the value of $1.95 and $18.05 in money of the United States of America, then you will find the defendant guilty of making and uttering a check, as charged in the information, and assess his punishment at imprisonment in the state penitentiary for a term of not less than two years nor more than seven years; and unless you so find the facts to be, you will find the defendant not guilty.' (Our italics.)

The trial court refused defendant's proffered (converse) Instructions D-5 and D-7, which refused instructions hypothesized substantially the negative of the principal Instruction No. 1 including the language which we have italicized.

As we have seen, there was no evidence tending to show any representation or pretense on the part of the defendant other than the drawing and uttering of the check itself; consequently, there was no evidence (other than the evidence of the drawing and uttering of the check itself) tending to substantiate the italicized language of the principal Instruction No. 1, and obviously the giving of defendant's converse Instructions D-5 and D-7 would have been tantamount to directing the defendant's acquittal.

While defendant would have been nonetheless guilty had he made express or verbal representations (at the time he drew and uttered the check) that he had an account in the bank and that the check would be paid upon presentation, yet merely giving the check was, in effect, a representation that the check was good and would be paid upon presentation; and obtention of money or property by the mere means of a check given, with intent to cheat or defraud, the drawer knowing he has no funds in the bank, is, and has been since 1913, a fraud specifically and expressly denounced by Section 561.450, supra. Laws of Missouri 1913, p. 222.

It is pertinent to examine the provisions of sections of our statutes defining different and independent...