State v. McCutchan

• Citation: 259 N.W. 23,219 Iowa 1029
• Decision Date: 12 February 1935
• Docket Number: 42547.
• Parties: STATE v. McCUTCHAN.
• Court: Iowa Supreme Court

259 N.W. 23

219 Iowa 1029

STATE v. McCUTCHAN.

No. 42547.

Supreme Court of Iowa.

February 12, 1935

Appeal from District Court, Henry County; James D. Smyth, Judge.

The defendant was indicted and tried on the charge of uttering a false check under section 13047 of the 1931 Code of Iowa. There was a verdict of guilty, and defendant appeals.

Affirmed.

J. O Boyd, of Keokuk, Max Kinney, of Mt. Pleasant, and Ludie S Davis, of Kansas City, Mo., for appellant.

Edward L. O'Connor, Atty. Gen., Walter Maley, Asst. Atty. Gen and J. V. Gray, Co. Atty., of Mt. Pleasant, for the State.

HAMILTON, Justice.

The defendant, R. V. McCutchan, was indicted by the grand jury of Henry county, Iowa, for the false uttering of a bank check, under section 13047 of the 1931 Code of Iowa, the accusation being that the said R. V. McCutchan, on or about the 2d day of November, A. D. 1932, in the county and state aforesaid, did with fraudulent intent utter and deliver to the Olds Savings Bank of Olds, Iowa, a certain bank check in the sum of $5,000, upon the State Central Savings Bank of Keokuk, Iowa, made payable to R. V. McCutchan, and did secure money, credit, and things of value therefor, and knowingly did not have an arrangement, understanding, or funds with such bank, sufficient to meet or pay the same.

Section 13047 of the 1931 Code of Iowa is as follows: " False Drawing or Uttering of Checks . Any person who with fraudulent intent shall make, utter, draw, deliver, or give any check, draft, or written order upon any bank, person, or corporation and who secures money, credit, or thing of value therefor, and who knowingly shall not have an arrangement, understanding, or funds with such bank, person or corporation sufficient to meet or pay the same, shall be guilty of a felony, if such check, draft or written order shall be for the sum of twenty dollars or more, and shall on conviction thereof be punished as in section 13045, and if such check, draft or written order be for less than twenty dollars, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by fine not to exceed one hundred dollars, or by imprisonment in the county jail not to exceed thirty days."

The essential elements of the crime charged are: (1) Fraudulent intent; (2) securing money, credit, or other thing of value therefor; (3) knowingly not having any arrangements, understanding, or funds in such bank to meet or pay the check; and (4) that the Olds Savings Bank of Olds, Iowa, was defrauded in some amount by the passing and delivery of said check.

It would serve no useful purpose to set out at length and in detail the evidence which the trial court permitted to go to the jury. Was there competent evidence which tended to establish, and from which the jury could find, under the instructions of the court, and beyond a reasonable doubt, the foregoing essential elements of the crime as charged in the indictment?

The defendant admits, and it is established beyond any question by the evidence, that he issued the check for $5,000 on the State Central Savings Bank of Keokuk, Iowa, bearing date of November 1, 1932, signed " McCutchan Land Co., R. V. McCutchan," payable to himself, and that he indorsed it " R. V. McCutchan." He also admits in his testimony, and it is established by the evidence, that on the 1st day of November, 1932, the date of the issuance of said check, neither the defendant nor McCutchan Land Company had any funds in the above-named bank at Keokuk, Iowa, and that on that date he had made no arrangements whatsoever with the bank on which it was issued to take care of this check. In addition to the defendant's admission, E. A. Ebersole, who had been connected with the State Central Savings Bank of Keokuk, Iowa, for twelve years, and who had been cashier of said bank since February, 1933, testified that, at the time this check, described in the indictment, and which is referred to in the record as Exhibit 1, was written and presented to his bank, in so far as he knew there had been no arrangements made with the bank by R. V. McCutchan or the McCutchan Land Company to honor said check. The defendant does not claim otherwise. Therefore, at the time the check was issued, it was issued by him knowingly, not having any arrangements or understanding or funds with the bank on which it was drawn to meet or pay the same.

According to the defendant's version, three days after the check was issued that is, on November 3, 1932, he went to Davidson & Curtis, a commission firm located at Bushnell, Ill., and persuaded them to issue him a fictitious check for a like sum of $5,000 on a bank in Illinois, which check he said he would take to the State Central Savings Bank at Keokuk, Iowa, and deposit to meet the check, Exhibit 1, and he in turn issued his own check, upon the Olds Savings Bank of Olds, Iowa, payable to Davidson & Curtis for the sum of $5,000, in exchange for their $5,000 check. The defendant delivered the $5,000 check which he received from Davidson & Curtis to the State Central Savings Bank at Keokuk, Iowa, but it was never deposited to his account in that bank, and was only taken by the bank for collection. Neither of these checks was ever paid. It will be noticed that there was no money to support or meet any of these checks. He claims it was a plan, worked out by himself for the purpose of obtaining credit for a few days, while the checks were clearing, and it was done for the accommodation of Mr. Morgan, to enable Morgan " to get this money into his bank." The check, Exhibit 1, bears the indorsement of the Olds Savings Bank of Olds, Iowa, and was included in the deposits of the Olds Savings Bank of November 2, 1932, and the remittance sheet shows that it was sent by the Olds Savings Bank to the Drovers' National Bank of Chicago for clearance and credit. It went through the Federal Reserve Bank of Chicago to the bank at Keokuk, Iowa, on which it was drawn. There, on November 4, 1932, it was protested for lack of sufficient funds, and was sent back through the regular channels to the Olds Savings Bank of Olds, Iowa.

On November 14, 1932, apparently to meet this check, the bills receivable record of the Olds Savings Bank of Olds, Iowa, was falsely stepped up $5,000. The discount register shows that on that date there were actual loans made in the aggregate of $247.40, while the cashbook for that date shows the discounts to be $5,247.40, and also shows a draft returned from the Drovers' National Bank of Chicago, for $5,002; the $2 being protest fees.

It is not revealed from the record of the testimony in the case that any effort was ever made to locate R. V. McCutchan, or that his attention was ever called to the fact that this check had been returned dishonored. Neither is there any explanation in the record for the $5,000 increase on the loans and discounts register of the Olds Savings Bank, nor any explanation as to who did this, except that the assistant cashier, who was the only person other than Morgan working in the bank, testified that the first line containing this false entry in the cashbook was in the handwriting of F. A. Morgan, the cashier. There was introduced in the record, and identified by the assistant cashier, a deposit ticket on the form used by the Olds Savings Bank, which shows that there was a deposit to the account of F. A. Morgan, trustee, of Olds, Iowa, on November 2, 1932, said deposit ticket bearing the statement, " Checks as follows," and, among the checks listed, an item of $5,000. This corresponds to the $5,000 check, Exhibit 1, and was the only $5,000 check received by the bank on that date . The defendant's own testimony shows that he delivered the check to F. A. Morgan. Neither R. V. McCutchan nor McCutchan Land Company had an account in the Olds Savings Bank on November 1, 1932, or November 2, 1932, R. V. McCutchan's account was closed June 13, 1930, and the account of the McCutchan Land Company was closed May 2, 1932, and this check was not deposited to either of these accounts.

The Olds Savings Bank of Olds, Iowa, went under Senate File No. 111 in the spring of 1933, and L. E. Fleak of Winfield, Iowa, was sent there by the state banking department as deputy manager, and he remained there from April 7, 1933, until the bank closed and went into the hands of a receiver on July 22, 1933. Mr. Fleak testified: " In tracing Exhibit No. 1, I first found where the check for $5,000.00 had been returned. Then I moved up to find out where the check had been remitted out. Then referred to the remittance book and found a sheet linking it up with this check. The remittance loose leaf register sheet would be Exhibit No. 3, which showed that $5,000.00 had been charged against the assets of the Olds bank on the return of Exhibit No. 1. It had been charged to the Drovers' National Bank, taken off their balance with the Drovers' National Bank, and there was only one item of $5,000.00 to cover that check, and that was the bills receivable. The bills receivable amounted to two hundred and forty some dollars on the register, and the daily journal shows that day for bills receivable $5,247.40. I found Exhibit No. 1 on November 2nd, in the list of checks and deposits, only one $5,000.00 item . I looked in the deposit tickets for that day and located that deposit ticket but it was F. A. Morgan, Trustee. That was the only $5,000.00 deposit ticket on that day's business ."

It is the contention of the defendant that he planned this whole scheme for the benefit of Mr. F. A. Morgan, and explained it all to him at the time he gave him the check; that Mr. Morgan requested him to give him the check; that he received nothing of benefit or value because of the issuance of this check. The jury found that the bank sustained a loss...