State v. McLean
| Decision Date | 09 January 1950 |
| Docket Number | No. 39402,39402 |
| Citation | 44 So.2d 698,216 La. 670 |
| Parties | STATE v. McLEAN. |
| Court | Louisiana Supreme Court |
Michael E. Culligan, Jr., New Orleans, for appellant.
Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Herve Racivitch, Dist. Atty., Wm. J. Wegmann, Asst. Dist. Atty., New Orleans, for appellee.
In a bill of information filed by the District Attorney of Orleans Parish the charge was made that Louis W. McLean, the defendant herein, did on October 6, 1948, 'issue to the Compania de Astral of South America in exchange for bananas of the value of Nine Thousand, Seven Hundred Thirty-One Dollars and Sixty-Eight Cents ($9,731.68) in the lawful money of the United States of America, with intent to defraud, a check for the payment of money in the sum of Nine Thousand, Seven Hundred Thirty-One Dollars and Sixty-Eight Cents ($9,731.68), dated October 6, 1948, drawn on the Hibernia National Bank in New Orleans, payable to the order of Compania de Astral of South America and signed by L. W. McLean, knowing at the time of the issuing that he, the said Louis W. McLean had not sufficient credit with said bank for the payment of such check in full, upon its presentation.'
Following the overruling of his demurrer and motion to quash, defendant was tried on the recited charge and found guilty. Thereupon he tendered motions for a new trial and in arrest of judgment. The court denied both of these motions and sentenced him to pay a fine of $350 and to serve seven months in the Parish Prison, with an additional five months in default of payment of the fine.
On this appeal defendant relies on three bills of exceptions for a reversal of the conviction and sentence. One of these, reserved when the motion for a new trial was denied, appears to have merit, and we need discuss only it.
Under the motion for a new trial defense counsel contends that there was no evidence adduced (a transcript of all the evidence received is before us on this appeal) in proof of certain essentials of the crime charged. This court, of course, cannot pass upon the sufficiency of the evidence in a criminal case where there was some proof (of all material elements) to sustain the conviction. But where the complaint is made, as here, that the conviction was had without any evidence at all establishing essentials of the offense, a question of law is presented which we must and will determine. State v. Wilson, 196 La. 156, 198 So. 889; State v. Lassiter, 198 La. 742, 4 So.2d 814; State v. Nomey, 204 La. 667, 16 So.2d 226; State v. Wooderson, 213 La. 40, 34 So.2d 369.
The charge against this defendant was drawn under and pursuant to the provisions of Article 71 of the Louisiana Criminal Code, Act No. 43 of 1942, reading in part: 'Issuing worthless checks is the issuing in exchange for anything of value, with the intent to defraud, of any check, draft, or order for the payment of money upon any bank or other depository, knowing at the time of the issuing that the offender has not sufficient credit with the bank or other depository for the payment of such check, draft, or order in full upon its presentation.'
This language indicates that the crime denounced is committed only when there is a concurrence in point of time of an intent to defraud, the receipt of title and possession of a thing of value, and the giving of the worthless check in payment therefor; it does not include the giving of a check for an antecedent debt. Thus, the definition specifically provides for the issuance of the check, with intent to defraud, in exchange for anything of value. If the check is given subsequent to the receipt of the thing the required exchange does not take place, and no intent to defraud attends the check's issuance. Rather, in such a case, the check is issued in payment of an antecedent debt--a debt created by a previous sale and delivery of the thing on terms of credit, on a promise to pay, not on the faith...
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State v. Douglas
...that can be considered by the Court. State v. Cade, 244 La. 534, 153 So.2d 382; State v. Gatlin, 241 La. 321, 129 So.2d 4; State v. McLean, 216 La. 670, 44 So.2d 698. Such a question of law was raised by the present defendant by Bill of Exceptions No. 1, reserved to the overruling of his mo......
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State v. Sinclair, 148
...gave the seller a check therefor on April 6th and requested him to hold the check until April 10th, which he did); State v. McLean, 216 La. 670, 44 So.2d 698 (1950) (where a check was issued three days after delivery of a cargo of bananas); Pollard v. State, Miss., 244 So.2d 729 (1971) (whe......
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Com. v. Goren
...Martin v. Commonwealth, 821 S.W.2d 95, 97 (Ky.Ct.App.1991) (interpreting Ky.Rev.Stat. Ann. § 514.040[1][e] [1999]); State v. McLean, 216 La. 670, 674, 44 So.2d 698 (1950) (interpreting an earlier version of La.Rev.Stat. Ann. § 14.71[A][1][a] [2007]; current version explicitly applies "wheth......
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State v. Gatlin
...157 La. 369, 102 So. 478; State v. Wilson, 196 La. 156, 198 So. 889; State v. Wooderson, 213 La. 40, 34 So.2d 369 and State v. McLean, 216 La. 670, 44 So.2d 698, the appellants were granted new trials, whereas, in the Nomey, Harrell and Sbisa cases and also in State v. Brown, 224 La. 480, 7......