State v. Lord

• Decision Date: 12 July 1899
• Parties: STATE v. LORD et al.
• Court: Minnesota Supreme Court

77 Minn. 267

79 N.W. 968

STATE

v.LORD et al.

Supreme Court of Minnesota.

July 12, 1899.

Appeal from district court, Lesueur county; Francis Cadwell, Judge.

John S. Lord and others were convicted of grand larceny. From an order denying a motion for new trial, Charles E. Johnson appeals. Reversed.

Syllabus by the Court

The defendant was convicted under the provisions of section 6711, Gen. St. 1894, making the obtaining, with intent to defraud, the property of another by aid of a worthless check, larceny. Held,

1. That in giving a check or draft a party does not necessarily represent that he then has with the drawee funds out of which it will be paid, but he does represent by the act of passing it that it is a valid order for its amount, and that the existing state of facts is such that it will be paid in the ordinary course of business.

2. That the verdict of guilty in this case is not sustained by the evidence. A. A. Stone and Smith & Parsons, for appellant.

W. B. Douglas, Atty. Gen., C. W. Somerby, Asst. Atty. Gen., and P. J. Kirwin, Co. Atty., for the State.

START, C. J.

The defendant was convicted of the crime of grand larceny in the second degree in the district court of the county of Lesueur, and appealed from an order denying his motion for a new trial. The indictment is based upon Gen. St. 1894, § 6711, which is in these words: ‘A person who willfully, with intent to defraud, by color or aid of a check or draft, or order for the payment of money or the delivery of property, when such person knows that the drawer or maker thereof is not entitled to draw on the drawee for the sum specified therein, or to order the payment of the amount, or delivery of the property, although no express representation is made in reference thereto, obtains from another any money or property, is guilty of stealing the same, and punishable accordingly.’ The gist of the offense defined by this statute is the obtaining, with intent to defraud, the money or property of another by false pretenses; that is, by color or aid of a check or draft which the accused has no reason to believe will be paid. In negotiating a check the maker does not necessarily represent that he then has with the bank funds out of which it will be paid, but he does represent by the act of passing the check that it is a good and valid order for its amount, and that the existing state of facts is such that in the ordinary course of business it will be met; or, in other words, he impliedly represents that he has authority to draw the check, and that it will be paid on presentation. Such authority need not be expressed, but it may be inferred from the course of dealing between drawer and drawee, 7 Am. & Eng. Enc. Law, 738; Reg. v. Hazelton, L. R. 2 Crown Cas. 134; Com. v. Drew, 19 Pick. 179;Barton v. People, 35 Ill. App. 573. Therefore if the defendant in this case, when he negotiated the check here in question, had good reason to believe, and honestly did believe, that he had authority to draw it, and that the then existing state of facts was such that the check would be paid in the ordinary course of business, he is not guilty of obtaining money by false pretenses, although the check was not in fact paid for want of funds. If such be this case, the intent to defraud, the gist of the alleged offense, would be wanting. On the other hand, if he did not have any reasonable cause for believing that he was entitled to draw the check, and that it would be paid, the jury would be justified in inferring from such a state of facts that he intended to defraud by color or aid of the check, and he was rightly convicted.

The important question, then, in this case, and the only one we deem it necessary to consider, is whether the evidence is sufficient to sustain the verdict of guilty. The evidence on the part of the state was to the effect following: The Lord Milling Company, a corporation, and hereinafter designated as the ‘corporation,’ had been engaged in the business of buying wheat and manufacturing it into flour at Elysian, in Lesueur county, for more than five years next before July 28, 1898. John S. Lord was its president, and the defendant Charles F. Johnson was its secretary and treasurer. It did its banking business during this time with the Bank of Waterville, located at Waterville, this state, seven miles distant from Elysian. When the corporation needed money for immediate use in purchasing wheat for its mill, it was accustomed to draw its check on the Bank of Waterville, payable to J. S. Morton & Co., doing a banking business at Elysian, and get the cash on it. The account of the corporation with the bank was overdrawn ‘off and on’ for a year before the making of the check here in question, but its checks were always paid by the bank. This overdraft amounted on June 15, 1898, to $4,600, and on that day the cashier of the bank wrote to the corporation, stating the amount thereof, and requesting that it be adjusted. Thereupon and on...